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THE  ELECTORAL  SYSTEM  OF 
THE   UNITED  STATES 

ITS    HISTORY,    TOGETHER   WITH    A   STUDY   OF   THE    PERILS   THAT 
HAVE   ATTENDED   ITS   OPERATIONS,  AN   ANALYSIS   OF  THE 
SEVERAL  EFFORTS  BY  LEGISLATION  TO  AVERT  THESE 
PERILS,  AND  A  PROPOSED  REMEDY  BY  AMEND- 
MENT OF  THE   CONSTITUTION 


BY 

J.    HAMPDEN   DOUGHERTY 


G.  p.  PUTNAM'S  SONS 

NEW  YORK  AND   LONDON 

(Tbe  finicltecbocRec  ipreea 
1906 


r3 


^^^'^.^il 


tiUtttUa. 


Copyright,  1906 

BY 

J.  HAMPDEN  DOUGHERTY 


Ube  1knicF:erbocker  press^  flew  J^orft 


CONTENTS 

PAGE 

Introduction '.        .        .         i 

CHAPTER  I 

The  Provisions  of  the  Constitution  Respecting 
THE  Electoral  System — Counting  in  1789 — The 
Act  of  1792 13 

CHAPTER  II 

Counting,  1793  until  1857 32 

CHAPTER  III 
Three  Theories  of  Counting — The  Bill  of  1800       .       58 

CHAPTER  IV 

Counting,  1861-1873 — The  Morton  Bill  .  .       75 

CHAPTER  V 

Debate  on  the  Electoral  Commission  Bill  of  1877      105 

CHAPTER   VI 

The  Case  of  Florida  before  the  Electoral  Com- 
mission . 136 

CHAPTER  VII 
The  Louisiana  Case 162 


iv  Contents 

CHAPTER  VIII 

PAGE 

The  Oregon  Case — The  South  Carolina  Case  .     184 

CHAPTER   IX 
The  Act  of  February  3,  1887 214 

CHAPTER  X 

The  Electoral  System  should  be  Abolished — De- 
fects IN  THE  Constitutional  Provisions  Re- 
garding THE  Presidential  Succession        .         .     250 

CHAPTER    XI 

The  Appointment  of  Electors  Treated  Histori- 
cally— Evils  OF  the  General-Ticket  System         281 

CHAPTER  XII 

Amendments  Offered  in  Congress  Relative  to  the 

Electoral  System        .        .        .        .        .        .    325 

CHAPTER  XIII 

A  Suggested  Remedy 364 

Index ,     409 


THE    ELECTORAL    SYSTEM    OF 
THE    UNITED    STATES 


*^v    ^ 


THE  ELECTORAL  SYSTEM  OF 
THE  UNITED  STATES 


INTRODUCTION 

IT  is  matter  of  familiar  knowledge  that  the  framers  of 
the  Constitution  of  the  United  States,  in  devising 
the  so-called  electoral  system,  intended  to  repose  absolute 
control  over  the  choice  of  the  President  and  Vice-President 
in  a  small  body  of  citizens  carefully  selected  by  the  several 
States.  Their  object  was  to  avoid,  on  the  one  hand,  the 
popular  tumult  and  passion  that  might  be  involved  in  an 
election  of  the  executive  by  the  people,  and,  on  the 
other,  the  legislative  domination  of  the  executive  that 
might  be  involved  in  his  election  by  the  Congress.  The 
tendency  in  this  democratic  age  is  to  overlook  the  fact 
that  the  fathers  of  the  Constitution  were  not  believers  in 
the  rule  of  the  people  and  that  it  was  not  until  after  1800 
that  manhood  suffrage  was  adopted  in  any  of  the  States. 
Democracy  has  completely  subverted  the  electoral  theory 
of  the  framers  of  the  Constitution,  yet  it  still  employs 
the  same  mechanism.  The  electoral  theory  contemplated 
the  emancipation  of  the  electors  from  outside  control: 
they  were  to  be  appointed  in  the  several  States  inde- 
pendently. The  idea  of  a  general  convention  was  dis- 
carded because  of  the  subtle  influence  which  might  be 
employed  to  affect  the  action  of  an  assembled  body,  and 
because  of  the  difficulty  in  convening  so  large  a  gathering 


2  The  Electoral  System 

at  the  national  capital.]  By  the  electoral  plan  the  appoint- 
ees of  each  State  were  to  meet  in  that  State  and  cast  a 
secret  ballot  on  the  same  day  upon  which  the  electors  con- 
vened in  all  the  other  States,  the  intent  being  that  each 
separate  electoral  college  should,  when  making  its  choice, 
be  unaware  of  the  decision  of  the  others.  But  in  prac- 
tical effect,  the  secret,  independent,  unpledged  electors 
in  a  brief  time  became  the  absolute  servants  of  party. 
Their  action  was  early  dominated  by  legislative  and  con- 
gressional caucuses,  and  when  party  conventions  were  de- 
veloped, they  became  mere  registers  of  the  convention's 
will.  Each  elector  thus  became  so  completely  an  autom- 
aton that  in  ordinary  circumstances  he  would  not  dream 
of  exercising  any  freedom  in  the  use  of  his  ballot,  for 
violation  of  his  tacit  pledge  to  the  party  that  elected  him 
would  bring  upon  him  all  the  odium  attaching  to  a 
traitor. 

This  metamorphosis  of  the  electoral  system  is  familiar 
to  all  who  possess  the  most  superficial  acquaintance  with 
its  history.  But  it  is  not  so  generally  appreciated  that 
the  weakest  part  of  the  electoral  system  is  the  provision 
regarding  the  electoral  count.  In  consequence  of  this 
ambiguous  provision,  the  country  has  twice  been  brought 
to  the  brink  of  revolution.  The  Constitution  prescribes 
that  lists  of  the  votes  of  electors  in  the  several  States, 
properly  authenticated  by  the  State  executive  officer, 
shall  be  transmitted  in  sealed  packages  to  the  president 
of  the  Senate;  that  they  shall  be  opened  by  him  in  the 
presence  of  the  Senate  and  of  the  House  of  Representa- 
tives, and  that  ''the  votes  shall  then  be  counted."  This 
mandate,  thrown  into  the  passive  form,  perhaps  for  solemn 
emphasis,  fails  explicitly  to  declare  who  shall  count  the 
votes.  It  is,  says  Von  Hoist,  "a  formula  that  forces  us 
to  suppose  that  according  to  the  views  of  the  framers  of 
the  Constitution,  the  question  was  one  simply  of  addi- 
tion."    The  practice  of  the  fathers  seems  to  have  im- 


Introduction  3 

posed  the  duty  of  counting  upon  the  president  of  the 
Senate ;  and  it  has  been  forcibly  argued  that  their  action 
was  equivalent  to  an  exposition  of  the  meaning  of  the 
Constitution  by  its  creators  and  contemporaries.  By 
degrees  the  two  Houses  deposed  the  president  of  the 
Senate  from  this  office,  first  by  appointing  tellers  and 
passing  resolutions  as  to  the  mode  of  counting,  in  which 
more  or  less  of  power  over  the  count  was  assumed;  later, 
by  the  adoption  of  the  twenty-second  joint  rule,  and, 
more  recently,  by  the  special  legislation  of  1877  and  the 
general  enactment  of  February  3,  1887.  The  unconsti- 
tutionality of  any  interference  by  Congress  with  the 
assumed  prerogatives  of  the  president  of  the  Senate  has 
been  as  earnestly  argued  in  recent  years  as  it  was  by 
Charles  C.  Pinckney  in  the  Senate  of  1800.  But  the 
discovery  of  the  full  significance  of  the  ambiguity  that 
resides  in  the  passive  expression,  "the  votes  shall  then  be 
counted,"  was  gradual.  The  convention  doubtless  as- 
sumed that  none  but  legal  votes  would  be  presented  by 
electors,  all  constitutionally  qualified  to  vote,  and  that 
counting  or  enumerating  the  votes  would  be  a  simple 
task.  Five  disabilities  were  imposed  by  the  Constitution 
upon  the  presidential  office.  One  disability  was  imposed 
upon  the  office  of  presidential  electors.  The  only  limita- 
tion upon  electors  was  that  they  should  not  be  in  the 
service  of  the  United  States,  and  it  was  to  be  presup- 
posed that  no  State  would  impair  or  nullify  its  votes  by 
appointing  as  its  agents  persons  ineligible  to  execute  the 
exalted  trust.  With  like  reason  was  it  assumed  that  the 
electors  appointed  by  a  State  would  never  select  for 
the  presidency  an  alien,  a  foreign  potentate,  or  a  person 
ineligible  for  lack  of  years  or  of  residence,  lest  such  a 
choice  should  invalidate  the  vote  of  the  State ;  and  the 
jealousy  with  which  the  smallest  States  guarded  their 
prerogatives  and  insisted  upon  their  rights  was  one  of  the 
cardinal  difficulties  that  beset  the  convention  in  devising 


4  The  Electoral  System 

a  plan  of  election  that  would  be  received  by  them  with 
favor.  The  imagination  of  the  framers  of  the  Constitu- 
tion could  not,  therefore,  readily  conceive  that  the  count- 
ing of  the  electoral  vote  would  ever  be  other  than  a 
simple  ministerial  duty  to  be  performed,  as  they  probably 
intended,  by  the  president  of  the  Senate,  in  the  presence 
of  both  Houses,  as  witnesses  of  the  solemn  ceremony. 
John  Adams,  as  the  president  of  the  Senate,  in  announc- 
ing his  own  election  to  the  presidency  in  1797,  declared 
that,  in  pursuance  of  the  Constitution  and  the  resolution 
of  the  two  Houses,  he  had  counted  the  votes;  and  no 
exception  was  taken  to  the  declaration,  or  could  well  have 
been,  under  the  language  of  the  resolution  adopted  by 
the  Houses  just  prior  to  the  ceremony.  But  "counting" 
was  found  in  time  to  involve  more  than  "enumerating" 
the  electoral  votes,  and  gradually  took  on  the  significance 
of  "canvassing."  In  the  evolution  of  history,  the  word 
"State"  was  thought  to  require  definition.  Was  Indiana 
a  State  in  18 16?  Was  Missouri  a  State  in  1820?  Each 
appointed  electors,  and  a  certificate  from  the  so-called 
electors  of  the  self-styled  State  of  Indiana  lay  in  the  pile 
of  electoral  certificates  before  the  president  of  the  Senate 
in  1 8 17;  and  a  similar  certificate  was  transmitted  from 
Missouri  in  1821,  although  it  had  not  actually  been  ad- 
mitted as  a  State  when  its  electors  voted  in  December, 
1820.  When  the  question  was  raised,  there  appeared  to 
be  no  constituted  authority  to  solve  it,  and  its  solution 
was  evaded. 

The  Act  of  Congress  of  1792,  following  the  Constitu- 
tion, prescribed  the  time  when  the  electors  should  as- 
semble in  the  different  States,  to  vote  for  President  and 
Vice-President ;  and  when  the  electoral  certificate  of  Wis- 
consin was  opened  in  the  Senate  in  1857  it  disclosed  the 
fact  that  the  electors  had  attempted  in  good  faith  to  obey 
the  law  and  to  assemble  on  the  appointed  day,  but  were 
deterred  from  doing  so  by  a  violent  snow-storm.     They 


Introduction  5 

consequently  met  and  voted  the  following  day.  When 
the  vote  was  challenged  in  the  joint  session  of  the  two 
Houses  of  Congress  it  was  asked  whether  the  act  of  God 
should  disfranchise  a  State,  but  the  actual  question  was, 
Who  was  to  decide  upon  the  legality  of  the  vote?  Did  the 
Constitution  import  that  this  vast  power — that  of  deter- 
mining whether  a  commonwealth  claiming  to  be  a  State 
was  in  fact  a  State,  or  whether  a  State  might  lawfully 
vote  upon  a  different  day  from  that  designated  by  Con- 
gress if  its  vote  upon  the  appointed  day  was  prevented 
by  act  of  God — should  be  confided  to  the  president  of 
the  Senate,  who  might  be  vitally  interested  in  the  de- 
cision as  a  candidate  for  the  presidency?  Faulty  and 
irregular  certificates,  certificates  criticised  for  various 
reasons  as  invalid  were,  on  later  occasions,  deposited  on 
the  Vice-President's  desk;  finally  came  dual,  treble,  and 
quadruple  returns  from  a  State,  each  importing  to  be 
sufficiently  authenticated,  each  claiming  to  disclose  the 
electoral  will  of  the  State.  Was  the  president  of  the 
Senate  to  decide  between  these  conflicting  returns?  If 
so,  was  he  not  then  the  arbiter  of  the  nation's  destinies? 
Was  the  power,  on  the  other  hand,  in  Congress;  and  if 
in  Congress,  was  it  to  be  exercised  by  the  Houses  sitting 
as  one  body,  voting  per  capita ;  and  if  not,  how  was  a 
conclusion  ever  to  be  reached  if  the  two  Houses  should 
fail  to  agree? 

Just  before  the  close  of  the  Civil  War  Congress  adopted 
the  twenty-second  joint  rule, —  a  measure  of  doubly 
doubtful  validity.  For  while  the  power  of  Congress  to 
constitute  itself,  by  legislation,  judge  of  disputed  returns 
is  questionable,  it  is  equally  questionable  whether  a  joint 
rule,  not  requiring  even  the  approval  of  the  President, 
could  constitutionally  be  employed  as  a  substitute  for 
legislation.  From  generation  to  generation  it  was  pre- 
dicted that  trouble  would  ensue.  Congress  was  urged 
by  some  to  pass  a  general  enactment,  not  only  prescrib- 


6  The  Electoral  System 

ing  how  State  certificates  should  be  authenticated,  and 
State  votes  counted,  but  also  creating  some  tribunal  to 
decide  the  various  questions  that  might,  from  time  to 
time,  arise.  Others  argued  that  in  the  legislation  of  1792 
and  1845,  fixing  the  day  for  the  choice  of  electors  and  of 
their  assembling,  and  prescribing  how  their  appointment 
should  be  certified,  Congress  had  exhausted  its  power. 
But  Congress  never  passed  a  general  law  until  1887.  Al- 
though amendments  designed  to  overcome  the  inherent 
difficulties  of  the  Constitution  were  introduced  from  time 
to  time,  none  was  ever  adopted. 

In  1877,  the  oft-prophesied  danger  arose,  when  action 
upon  the  vote  of  a  State  was  bound  to  decide  the  result. 
The  emergency  was  met  by  an  expedient  of  doubtful  con- 
stitutionality,— the  creation  of  an  electoral  commission. 

The  crisis  of  1877  emphasized  the  necessity  either  of 
adequate  legislation  or  of  a  constitutional  amendment,  if 
such  legislation  were  beyond  the  province  of  Congress. 
The  outcome  of  ten  years'  debate  is  the  statute  of  Febru- 
ary 3,  1887.  This  act,  in  so  far  as  it  recognizes  each  State 
to  be  the  sovereign  and  exclusive  judge  over  the  appoint- 
ment of  its  electors,  is  in  undoubted  harmony  with  the 
Constitution.  But  it  raises  the  perennial  question  whether 
Congress  has  any  power  so  to  legislate  as  to  vest  in  itself 
the  decision  of  disputes  over  returns,  for  Congress  thus 
becomes  an  ultimate  President-maker.  The  statute  is 
not  only  cumbersome  in  its  details,  but  defective  in  fail- 
ing to  provide  how  the  vote  of  a  State  shall  be  saved 
from  rejection  when  the  two  Houses  disagree. 

The  greatest  aggression  by  Congress  was  the  adoption 
of  the  twenty-second  joint  rule, — a  rule  which  placed  the 
electoral  vote  of  a  State  at  the  mercy  of  a  partisan  ma- 
jority in  either  House.  This  rule  was  repealed  by  the 
Senate  on  January  20,  1876,  and  when  the  difficulties  of 
1877  arose,  the  rule  could  not  be  revived,  as  the  two 
Houses   were   of   different   political   complexion.      The 


Introduction  7 

Senate  would  not  consent  to  its  reinstatement,  for  the 
House  alone  could  have  rejected  any  disputed  return, 
and  thus  have  made  Tilden  President.  The  substitute 
method,  the  Electoral  Commission  law,  was  adopted  to 
avoid  anarchy,  and  this  law  was  criticised  on  the  floor  of 
the  Senate  by  Senator  Ingalls  in  1886,  as  "a  device  that 
was  favored  by  each  party  in  the  belief  that  it  would  \ 
cheat  the  other,  and  it  resulted  in  defrauding  both."  \ 
The  late  Senator  Dawes  of  Massachusetts  truthfully 
said  that  it  was  a  patriotic  device,  "concurred  in  at  the 
time  by  both  political  parties,  to  avoid  questions  that 
neither  could  answer";  and  he  added:  "If  doubts  of  a 
like  character  shall  ever  again  make  the  result  uncertain, 
their  solution  cannot  be  looked  for  through  any  such 
method,  and  these  questions,  unanswered,  may  yet 
wreck  the  Government." 

The  Act  of  1887  is  an  attempt  to  answer  these  ques- 
tions, but  it  has  yet  to  be  subjected  to  practical  test. 
The  framers  of  the  act  conceded  that  it  was  unsatisfac- 
tory ;  its  critics  declared  that  it  was  unconstitutional,  and 
their  contention  was  sound. 

It  is  beside  the  purpose  of  these  pages  to  attempt  to 
determine  where  the  Constitution  intended  to  place  the 
counting  power.  A  century  of  discussion  finds  the  advo- 
cates of  antagonistic  views  convinced  of  the  correctness 
of  their  own  positions.  The  point  to  be  emphasized  is 
that  the  history  of  the  nation,  since  the  formation  of 
the  Union,  demonstrates  not  only  the  breakdown  of  the 
system,  but  the  peril  of  its  continuance.  The  danger  is 
intensified,  not  averted,  by  the  Act  of  1887.  In  these 
circumstances,  prudence  dictates  an  amendment  provid- 
ing a  radical  cure. 

The  belief  that  has  inspired  the  preparation  of  this 
book  is  that  the  dangers  of  the  electoral  system  are  not 
commonly  understood,  and  that,  when  once  they  are  ap- 
preciated, the  electoral  system  will  be  abolished. 


8  The  Electoral  System 

Although  innumerable  propositions  for  an  amendment 
of  the  organic  law  have  been  offered  in  Congress  since  the 
earliest  years  of  the  nineteenth  century,  and  although  the 
disputed  election  of  1876  produced  widespread  and  pro- 
found disquietude,  the  history  of  the  electoral  count  has 
never  formed  the  sole  topic  of  any  book.  Much  infor- 
mation contained  in  subsequent  pages  is  to  be  extracted 
only  from  the  records  of  Congress.  Of  the  numerous 
proposals  to  amend  the  Constitution  which  these  records 
reveal,  none  were  ever  successful  after  the  adoption  of 
the  Twelfth  Amendment  in  1804.  Many  of  the  proposals 
were  printed  by  the  House  in  which  they  were  presented, 
but  never  received  further  consideration.  Some  were 
referred  to  committees  and  were  made  the  subject  of 
report,  but  were  never  discussed  upon  the  floor  of  Con- 
gress. A  few  provoked  animated  debate.  There  de- 
veloped in  the  winter  of  1823-4  and  of  1825-6,  an  intense 
desire  for  amendment,  and  many  of  the  ablest  leaders  of 
the  Senate  and  House  spoke  upon  the  numerous  sugges- 
tions then  made.  Between  1873  and  the  winter  of  1876-7, 
Morton  was  the  protagonist  of  the  electoral  reform,  and 
the  discussions  took  a  broader  range  than  formerly,  inas- 
much as  intervening  history  had  shed  new  light  upon 
the  problems  of  the  electoral  count.  Two  figures  in 
these  two  separate  epochs  stand  out  pre-eminently  as 
advocates  of  reform, — Benton  and  Morton. 

There  is  not  much  to  encourage  the  hope  of  successful 
reform  in  the  story  of  the  failures  of  the  past.  While 
the  State  constitutions,  as  Mr.  Henry  Hitchcock  has  so 
admirably  shown,  exhibit  great  flexibility  and  have  re- 
peatedly been  altered  by  amendment,  the  Federal  Con- 
stitution has  for  a  century  resisted  peaceful  alteration, 
and  with  the  increase  in  the  number  of  States  its  rigidity 
becomes  greater. 

The  necessity  for  constitutional  changes  in  the  electoral 
system  is  far  more  evident  to-day  than  it  was  in  Benton's 


Introduction 


^ 


time,  and  the  reform  has  a  powerful  ally,  the  need  of 
which  he  realized, — public  opinion.  If  the  people  can  j 
be  taught  the  transcendently  urgent  importance  of  abol-  ' 
ishing  a  system  that  was  an  exotic  when  it  was  first 
adopted;  that  has  never  performed  its  contemplated 
function;  that  has  been  criticised  ever  since  its  creation, 
has  become  useless,  and,  what  is  much  worse,  dangerous,, 
their  wisdom  may  be  trusted  to  discover  the  remedy.      / 

The  aim  in  this  discussion  of  the  electoral  system  has 
been  to  admit  nothing  irrelevant,  and  to  omit  nothing 
essential ;  for  no  amendment  that  has  been  proposed  can 
be  properly  criticised,  nor  can  anything  synthetic  be  at- 
tempted, until  the  history  is  understood.  I  have,  after 
the  briefest  analysis  of  the  present  constitutional  pro- 
visions, traced  the  story  of  the  electoral  count  from  1789 
up  to  the  scenes  in  Congress  in  1857.  ^  have  proceeded 
to  state  the  various  interpretations  which  had  been 
given  to  the  inscrutable  words  "the  votes  shall  then  be 
counted,"  and  briefly  explained  the  Federalist  bill  of 
1800,  which,  although  it  never  became  law,  was  the  ger- 
minal idea  from  which  all  subsequent  rules  and  enact- 
ments have  sprung.  I  have  given  the  unbroken  record  of 
the  count  up  to  1857,  before  discussing  the  bill  of  1800, 
because  that  seemed  a  necessary  prelude  to  a  full  com- 
prehension of  the  bill  itself.  The  history  of  the  Electoral 
Commission  law  of  1877  and  an  analysis  of  the  proceed- 
ings before  the  electoral  tribunal  seemed  necessary  not 
only  to  explain  the  circumstances  which  led  to  the  enact- 
ment of  the  general  law  of  February  3,  1887,  but  to  show 
the  radical  need  of  a  constitutional  remedy  and  the  nature 
of  that  remedy.  If,  as  some  of  our  greatest  jurists  have- - 
said,  the  weakest  spot  in  the  Constitution  is  the  electoral'  _ 
system,  no  subject  more  important  can  engage  the  atten- 
tion  of  thoughtful  and  patriotic  American^^__^ 

The  debates,  except  during  the  excitement  of  an  actual 
count,  exhibit,  as  a  rule,  a  lack  of  partisanship  in  the 


lo  The  Electoral  System 

divergence  of  opinion.  These  debates  cover  thousands 
of  pages,  yet  there  is  much  in  them  worthy  of  study. 
Morton's  speech  to  the  Senate,  in  moving  a  reference  of 
the  subject  of  the  electoral  count  to  the  Committee  on 
Privileges  and  Elections,  in  February,  1873,  is  a  luminous 
statement  of  the  case  up  to  that  date  and  clearly  shows 
the  need  of  an  amendment  to  the  Constitution ;  and,  to 
the  hour  of  his  death,  Morton  was  convinced  that  noth- 
ing short  of  an  amendment  would  be  adequate.  Pro- 
found interest  attaches  to  Senator  Conkling's  speech 
upon  the  Electoral  Commission  bill  of  1877,  ^s  Conkling^ 
contrary  to  the  expectation  of  the  extreme  members  of 
his  party,  argued  that  the  power  to  count  was  not  with 
the  president  of  the  Senate,  but  had  been  reposed  by  the 
Constitution  in  the  two  Houses  assembled  at  the  opening 
of  the  electoral  certificates. 

The  "general-ticket"  plan  of  choosing  electors,  which 
has  come  to  be  universal  in  its  operation,  has  been  little 
discussed  by  writers  upon  the  Constitution.  Kent,  who 
was  retired  from  the  judiciary  of  New  York  at  sixty,' 
but  who  added  a  nobler  lustre  to  his  fame  by  his  Com- 
mentaries y  written  between  1826  and  1830,  naturally  failed 
to  deal  with  a  system  which  was  then  in  its  comparative 
infancy.  Story^writing  upon  the  Constitution  in  1833, 
after  an  allusion  to  the  gradual  abandonment  of  the  dis- 
trict system,  then  retained  by  only  two  States,  and  the 
disadvantage  it  might  occasion  them  while  other  States 
gave  an  unbroken  electoral  vote,  merely  says  that  a  con- 
stitutional M^endhm^itpro\^ 

by  the  people"  has  been  thought  desirable  by  many 
statesmen.  Bryce,  in  his  American  Commonwealth^  de- 
votes less  than  a  page  to  the  topic.  Edward  Everett 
strongly  commended  the  general-ticket  plan  in  the  House 
of  Representatives  in  1826,  in  replying  to  those  who 
favored  the  establishment  of  a  uniform  district  system 

^  The  age  limit  under  the  first  and  the  second  constitution  of  the  State. 


Introduction  1 1 

by  an  amendment  to  the  Constitution.  The  general- 
ticket  plan  is  not  of  the  warp  and  woi:^f  of  the  Constitu- 
tion, although  one  of  the  Presidents,  Benjamin  Harrison, 
wished  it  incorporated  into  the  fundamental  law  of  the 
land.  An  attempt  is  here  made  to  depict  the  evils  of 
that  system. 

The  district  system  is  also  considered,  with  the  con- 
clusion that,  although  a  possible  improvement  upon  the 
general-ticket  method,  it  contains  grave  and  apparently 
irremediable  imperfections.  There  is  no  plan  so  admira- 
ble as  the  £roportional  plan/  which  has  the  great  advah- 
ta^e  over,  all~Qthers.  as  is  shown  in  Chaptef''"!^'ffii.,-  of 
wonderfully  simplifying  the  whole  subject  ot  the  electoral 
count,  in  effect  making~a' contest  highly  improbable,  it 
not  practically  impossible."  JN o  author  haslihdertaken  to" 
discuss  the  various  amendments  to  the  electoral  system 
that  have  from  time  to  time  found  earnest  and  able  ad- 
vocates in  Congress.  One  cardinal  weakness  present  in 
all  these  propositions  is  their  defective  provision  for  the 
electoral  count. 

Every  one,  it  may  be  said,  grants  that  the  electoral 
system  has  outlived  its  usefulness.  Many  practical  con- 
siderations, such  as  the  inability  of  voters  to  deal  with  a 
complicated  electoral  ballot,  demonstrate  the  inefficiency 
of  the  system.  It  should  be,  others  say,  a  comparatively 
simple  task  to  frame  an  amendment  dispensing  with  elec- 
tors and  still  retaining  the  relative  influence  the  Constitu- 
tion assigns  to  the  States.  A  rational  amendment  has  to 
be  predicated  upon  adequate  historical  knowledge.  The 
conviction  that  without  a  more  thorough  appreciation 

^  "  Proportional  representation  means  simply  representation  in  propor- 
tion to  the  number  of  votes  cast  as  distinguished  from  the  present  majority 
rule,  where  it  is  all  or  nothing.  It  is  secured  in  this  way  :  Divide  the 
whole  number  of  votes  cast  in  any  political  unit,  whether  it  be  a  State, 
county,  city,  or  town,  by  the  number  of  representatives  to  be  chosen,  and 
the  quotient  will  be  the  quota  or  number  of  votes  necessary  to  elect  one 
representative.'' — (63  Ail.  Mo.,  p.  428,  March,  1889.) 


12  The  Electoral  System 

than  is  commonly  manifest  of  the  practical  peril  immin- 
ent in  the  electoral  system,  no  person  can  reasonably  offer 
or  accept  a  remedy,  has  directed  the  preparation  of  this 
book. 

An  amendment  is  needed  on  account  of  defects  other 
than  those  of  the  electoral  system.  The  Constitution 
fails  to  provide  who  shall  succeed  to  the  presidency  if  the 
President-elect  should  die  before  his  inauguration.  Con- 
gress would  be  justified,  if  necessary,  in  the  adoption  of 
extra-constitutional  means  for  keeping  the  executive  de- 
partment alive,  for  the  right  of  the  Government  to  main- 
tain itself,  or,  as  Seward  wrote  to  Charles  Francis  Adams 
in  1862,  "to  live,"  is  fundamental  and  deeper  than  any 
written  law.  If,  for  example,  during  the  War  of  181 2, 
the  British  had  captured  the  city  of  Washington  and  had 
imprisoned  or  deported  not  only  the  President  and  the 
Vice-President  of  the  United  States,  but  all  officers  of 
the  Government  who,  under  the  law  of  1792,  would  have 
succeeded  them  in  executive  authority,  it  would  have 
been  the  duty  of  Congress  to  continue  the  executive 
department,  and  to  prevent  its  cessation  for  a  single 
moment.  But  resort  to  such  expedients  in  a  time  of 
peace  and  intense  party  excitement  might  be  productive 
of  civil  war  or  revolution,  and  hence  the  paramount 
necessity  of  some  adequate  provision  in  the  Constitution 
itself  to  cover  every  possible  case  of  failure  of  executive 
authority. 


or  THfe 

-    UNIVERSITY 

OF 
£±L\FORt^ 


CHAPTER  I 

THE    PROVISIONS    OF    THE    CONSTITUTION    RESPECTING 

THE   ELECTORAL  SYSTEM — COUNTING   IN 

1789— THE  ACT   OF    1 792 

NO  subject  debated  in  the  convention  which  framed 
the  Federal  Constitution  gave  rise  to  more  ani- 
mated or  protracted  discussion  than  the  manner  of 
choosing  the  President.  The  delegates  considered  the 
advisability  of  an  election  by  vote  of  the  people  and  also 
by  both  Houses  of  Congress.  The  plan  finally  adopted 
was  that  the  electors  appointed  by  a  State  should  meet 
in  the  State  on  the  same  day  on  which  the  electors  as- 
sembled in  all  the  other  States,  and  that  each  separate 
electoral  college,  untrammelled  and  uninfluenced,  should 
select  some  person  fit  in  the  judgment  of  its  members  to 
be  chief  magistrate  of  the  country. 

The  idea  of  election  by  the  people  had  able  advo- 
cates. One  of  these  was  Gouverneur  Morris,  of  Pennsyl- 
vania, who  successfully  opposed  a  choicQ  by  the  Federal 
legislature.  Others  included  Dr.  Franklin,  and  John 
Dickinson,  of  Delaware,  James  Wilson,  of  Pennsylvania, 
and  Daniel  Carroll,  of  Maryland.  Profound  distrust  of 
the  people  was  expressed  by  other  delegates.  Roger 
Sherman,  of  Connecticut,  thought  that  "the  people  would 
never  be  sufficiently  informed  of  the  character  of  men  to 
vote  intelligently  for  the  candidates  that  might  be  pre- 
sented." Charles  C.  Pinckney,  of  South  Carolina,  said, 
"The  people  would  be  incited  by  designing  and  active 

13 


14  The  Electoral  System 

demagogues."  Elbridge  Gerry,  of  Massachusetts,  con- 
sidered a  popular  election  "radically  vicious,"  and  George 
Mason,  of  Virginia,  went  so  far  as  to  say,  "It  would  be 
as  unnatural  to  refer  the  choice  of  a  proper  person  for 
President  to  the  people,  as  to  refer  a  trial  of  colors  to  a 
blind  man."  Unwilling  to  confide  the  election  to  the 
people,  but  equally  resolute  in  the  determination  that 
Congress  should  have  no  part  or  lot  in  the  selection  of 
the  chief  executive,  the  convention  finally  approved  the 
electoral  plan.  Upon  no  subject  was  there  more  vacilla- 
tion or  uncertainty.  "No  less  than  ten  methods  of 
choosing  a  President  were  seriously  proposed  and  de- 
bated," said  Ingalls,  of  Kansas,  in  the  Senate,  on  Feb- 
ruary I,  1886.     Bancroft  thus  reviews  the  proceedings: 

"  And  now  the  whole  line  of  march  to  the  mode  of  the  elec- 
tion of  the  President  can  be  surveyed.  The  convention  at  first 
reluctantly  conferred  that  office  on  the  national  legislature; 
and  to  prevent  the  possibility  of  failure  by  a  negative  of  one 
House  on  the  other,  to  the  legislature  voting  in  joint  ballot. 
To  escape  from  danger  of  cabal  and  corruption,  it  next  trans- 
ferred full  and  final  power  of  choice  to  an  electoral  college  that 
should  be  the  exact  counterpart  of  the  joint  convention  of  the 
two  Houses  in  the  representation  of  the  States  as  units,  as  well 
as  the  population  of  the  States,  and  should  meet  at  the  seat  of 
government.  Then,  fearing  that  so  large  a  number  of  men 
would  not  travel  to  the  seat  of  government  for  that  single  pur- 
pose, or  might  be  hindered  on  the  way,  they  most  reluctantly 
went  back  to  the  choice  of  the  President  by  the  two  Houses  in 
joint  convention.  At  this  moment,  the  thought  arose  that  the 
electors  might  cast  their  votes  in  their  own  several  States,  and 
transmit  the  certificates  of  their  ballots  to  the  seat  of  govern- 
ment. Accordingly,  the  work  of  electing  a  President  was 
divided;  the  convention  removed  the  act  of  voting  from  the 
joint  session  of  the  two  Houses  to  electoral  colleges  in  the  sev- 
eral States,  the  act  of  voting  to  be  followed  by  the  transmission 
of  authenticated  certificates  of  the  votes  to  a  branch  of  the 


Provisions  of  the  Constitution  15 

general  legislature  at  the  seat  of  government;  and  then  it  re- 
stored to  the  two  Houses  in  presence  of  each  other  the  same 
office  of  counting  the  collected  certificates  which  they  would 
have  performed  had  the  choice  remained  with  the  two  Houses 
of  the  legislature."  ^ 


Hamilton,  advocating  in  the  Federalist  the  ratification 
of  the  Constitution  by  the  people  of  the  State  of  New 
^  York,  after  stating  that  no  part  of  the  system  framed  by 
the  convention  was  attended  with  greater  difificulty  than 
the  method  of  choice  of  a  President,  thus  praises  this  part 
of  the  convention's  work; 

"  The  precautions  which  have  been  so  happily  concerted  in 
the  system  under  consideration  promise  an  effectual  security 
against  this  mischief  (the  danger  of  tumult  and  disorder);  the  I 
choice  of  several  to  form  an  intermediate  body  of  electors  will ' 
be  much  less  apt  to  convulse  the  community  with  any  extra- 
ordinary and  violent  movements  than  the  choice  of  one  who 
was  himself  to  be  the  final  object  of  the  public  wishes.^  And 
as  the  electors  chosen  in  each  State  are  to  assemble  and  vote 
in  the  State  in  which  they  are  chosen,  this  detached  and  di- 
vided situation  will  expose  them  much  less  to  heats  and  fer- 
ments that  might  be  communicated  from  them  to  the  people 
than  if  they  were  all  to  be  convened  at  one  time,  in  one  place." 

Chancellor  Kent,  in  treating  of  the  election  of  Presi- 
dent, observes: 

' '  The  mode  of  his  appointment  presented  one  of  the  most 
difficult  and  momentous  questions  that  occupied  the  delibera- 
tions of  the  assembly  which  framed  the  Constitution;  and  if 
ever  the  tranquillity  of  this  nation  is  to  be  disturbed,  and  its 
liberties  endangered  by  a  struggle  for  power,  it  will  be  upon 
this  very  subject  of  the  choice  of  a  President.  This  is  the 
question  that  is  eventually  to  test  the  goodness  and  try  the 
strength  of  the  Constitution ;  and  if  we  shall  be  able,  for  half 
^  Hist,  of  U.  S.  (Bancroft),  vi.,  pp.  339,  340. 


i6  The  Electoral  System 

a  century  hereafter,  to  continue  to  elect  the  chief  magistrate  of 
the  Union  with  discretion,  moderation,  and  integrity,  we  shall 
undoubtedly  stamp  the  highest  value  on  our  national  charac- 
ter, and  recommend  our  republican  institutions,  if  not  to  the 
imitation,  yet  certainly  to  the  esteem  and  admiration  of  the 
more  enlightened  part  of  mankind. 

"  The  Constitution,  from  an  enlightened  view  of  all  the 
difficulties  that  attend  the  subject,  has  not  thought  it  safe  or 
prudent  to  refer  the  election  of  a  President,  directly  and  im- 
mediately to  the  people ;  but  it  has  confided  the  power  to  a 
small  body  of  electors,  appointed  in  each  State,  under  the  di- 
rection of  the  Legislature ;  and  to  close  the  opportunity  as  much 
as  possible  against  negotiation,  intrigue,  and  corruption,  it  has 
declared  that  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  vote,  and  that  the 
day  of  election  shall  be  the  same  in  every  State.  This  security 
has  been  still  further  extended  by  the  act  of  Congress  direct- 
ing the  electors  to  be  appointed  in  each  State  within  thirty- 
four  days  of  the  election." 

The  report  of  the  Senate  Committee  on  Privileges  and 
Elections,  in  1874,  states: 

"  The  theory  of  the  electoral  college  was  that  a  body  of  men 
should  be  chosen  for  the  express  purpose  of  electing  a  Presi- 
dent and  Vice-President,  who  would  be  distinguished  by  their 
eminent  ability  and  wisdom,  who  would  be  independent  of 
popular  passion,  who  would  not  be  influenced  by  tumult,  cabal, 
or  intrigue,  and  that  in  the  choice  of  the  President  they  would 
be  left  perfectly  free  to  exercise  their  judgment  in  the  selec- 
tion of  the  proper  person.  And  in  order  to  secure  more  per- 
fectly the  independence  of  the  electors  the  Constitution 
provides  that  they  shall  vote  by  ballot  in  the  electoral  college, 
so  that  it  might  not  be  known  to  each  other  or  to  the  country 
how  they  voted.  In  short,  the  idea  was  that  a  small  body  of 
select  men  could  be  more  safely  intrusted  with  the  election  of 
the  President  and  Vice-President  than  the  whole  body  of  the 
people." 


Provisions  of  the  Constitution  1 7 

Says  Mr.  Justice  Story,  in  his  Commentaries  on  the 
Constitution  : 

"  The  appointment  of  the  President  is  not  made  to  depend 
upon  any  pre-existing  body  of  men,  who  might  be  tampered 
with  beforehand  to  prostitute  their  votes;  but  is  delegated 
to  persons  chosen  by  the  immediate  act  of  the  people,  for 
that  sole  and  temporary  purpose.  All  those  persons,  who, 
from  their  situation,  might  be  suspected  of  too  great  a  de- 
votion to  the  President  in  office,  such  as  Senators  and  Repre- 
sentatives, and  other  persons  holding  offices  of  trust  or  profit 
under  the  United  States,  are  excluded  from  eligibility  to  the 
trust.  Thus,  without  corrupting  the  body  of  the  people,  the 
immediate  agents  in  the  election  may  fairly  be  presumed  to 
enter  upon  their  duty  free  from  any  sinister  bias.  Their 
transitory  existence  and  dispersed  situation  would  present 
formidable  obstacles  to  any  corrupt  combinations;  and  time, 
as  well  as  means,  would  be  wanting  to  accomplish,  by  bribery 
or  intrigue  of  any  considerable  number,  a  betrayal  of  their 
duty." 

Mr.  Bryce,  in  his  American  Commonwealth^  writes: 

"  To  have  left  the  choice  of  the  chief  magistrate  to  a  direct 
popular  vote  over  the  whole  country  would  have  raised  a  dan- 
gerous excitement,  and  would  have  given  too  much  encourage- 
ment to  candidates  of  merely  popular  gifts.  To  have  entrusted 
it  to  Congress  would  have  not  only  subjected  the  Executive  to 
the  legislature  in  violation  of  the  principle  which  requires  these 
departments  to  be  kept  distinct,  but  have  tended  to  make  him 
a  creature  of  one  particular  faction  instead  of  the  choice  of 
the  nation." 

The  growth  of  democracy  quickly  revolutionized  the 
plans  of  the  framers  of  the  Constitution.  The  independ- 
ence which  electors  were  to  exercise  in  choosing  a  can- 
didate for  the  presidency  soon  gave  way  to  a  positive 
obligation  upon  their  part  to  obey  the  dictates  of  party. 


1 8  The  Electoral  System 

No  presidential  elector  would  to-day  cast  his  vote  for  any- 
presidential  candidate  other  than  the  one  selected  by  the 
party  whose  representative  he  himself  is.  In  1796  three 
Democratic  electors,  passing  over  the  preference  of  their 
party,  voted  for  John  Adams  for  the  presidency.  El- 
bridge  Gerry,  one  of  the  electors  selected  by  the  Democ- 
racy of  Massachusetts,  voted  for  Adams  in  place  of 
Jefferson,  but  subsequently  explained  his  action  by  letter 
to  Jefferson,  evidently  to  the  latter's  satisfaction.  Had 
two  of  the  three  Democratic  electors  who  voted  against 
their  party's  candidate  voted  for  him,  Jefferson  would 
have  succeeded  to  the  presidency  in  1797,  instead  of  1801. 
No  one  at  the  time  questioned  the  propriety  of  the  action 
of  these  electors;  whereas,  to-day,  the  exercise  of  such 
freedom  would  be  deemed  a  breach  of  trust.  Since  1796 
there  has  been  no  well-authenticated  case  of  an  elector's 
failure  to  carry  out  his  party's  expectations.^ 

The  Constitution  of  the  United  States  commits  the 
method  of  the  appointment  of  electors  absolutely  to  each 
State.  Several  modes  of  choosing  electors  were,  in  the 
early  elections,  simultaneously  in  use  in  different  States, 
namely,  choice  by  the  Legislature,  either  by  joint  ballot 
or  concurrent  vote;  election  by  the  people  by  general 
ticket,  the  whole  number  of  electors  being  voted  for  on 
one  ballot  throughout  the  State ;  or  choice  by  districts. 


'  "  From  the  beginning,"  says  Benton,  "  the  electors  have  stood  pledged 
to  vote  for  the  candidates  indicated  [in  the  early  elections]  by  the  public 
will  ;  afterwards,  by  Congress  caucuses,  so  long  as  these  caucuses  followed 
the  public  will  ;  and  since,  by  assemblages  called  conventions,  whether 
they  follow  the  public  will  or  not.  In  every  case  the  elector  has  been  an 
instrument,  bound  to  obey  a  particular  impulsion  ;  and  disobedience  to 
-which  would  be  attended  with  infamy,  and  with  every  penalty  which  public 
indignation  could  inflict.  From  the  beginning  these  electors  have  been 
useless,  and  an  inconvenient  intervention  between  the  people  and  the  object 
of  their  choice,  and  in  time  may  become  dangerous.  The  institution 
■should  be  abolished,  and  the  election  committed  to  the  direct  vote  of  the 
people  ! " 


Provisions  of  the  Constitution  19 

This  last  method  is  considered  by  Hildreth,  in  his  History 
of  the  United  States ,  as 

"evidently  that  which  gave  the  fairest  expression  of  public 
opinion  by  approaching  nearest  to  a  direct  vote.  But  those 
States  which  adopted  it  were  placed  at  the  disadvantage  of 
being  exposed  to  a  division  of  their  strength  and  neutralization 
of  their  vote;  while  the  electors  chosen  by  either  of  the  other 
methods  voted  in  a  body  on  one  side  or  the  other,  making  the 
voice  of  the  State  decisively  felt." 

This  consideration,  he  says,  induced  the  two  leading 
States  of  Massachusetts  and  Virginia  to  abandon  the 
district  system.  In  Virginia  the  Democratic-Republican 
(the  modern  Democratic)  party  w^as  overwhelmingly  pre- 
dominant ;  hence  the  legislature  of  that  State  gave  to  the 
people  the  right  of  choice  by  general  ticket.  In  Massa- 
chusetts, the  parties  being  more  evenly  divided,  the 
Legislature  retained  the  right  of  appointment.  The 
general-ticket  system,  however,  gradually  came  into  favor 
and  was  finally  adopted  by  all  the  States. 

In  a  speech  in  the  Senate  in  December,  1823,  in  which 
he  advocated  a  constitutional  amendment  providing  for 
an  election  by  the  people  in  districts,  Benton  said : 

"  The  general-ticket  system  now  existing  in  ten  States  was 
the  offspring  of  policy  and  not  of  any  disposition  to  give  fair 
play  to  the  will  of  the  people.  It  was  adopted  by  the  leading 
men  of  those  States  to  enable  them  to  consolidate  the  vote  of 
the  State.  It  would  be  easy  to  prove  this  by  referring  to  facts 
of  historical  notoriety.  It  contributes  to  give  power  and  con- 
sequence to  the  leaders  who  manage  the  elections,  but  it  is  a 
departure  from  the  intention  of  the  Constitution,  violates  the 
right  of  minorities,  and  is  attended  with  many  other  evils." 

His  argument  as  to  the  infringement  of  the  rights  of 
minorities  is  unanswerable: 

"  In  New  York  thirty-six  electors  are  chosen,  nineteen  is  a 


20  The  Electoral  System 

majority,  and  the  candidate  receiving  the  majority  is  fairly 
entitled  to  count  nineteen  votes;  but  he  counts  in  reality 
thirty-six,  because  the  minority  of  seventeen  is  added  to  the 
majority.  These  seventeen  votes  belong  to  seventeen  masses 
of  people,  of  40,000  souls  each,  in  all  680,000  people,  whose 
votes  are  seized  upon  and  taken  away,  and  presented  to  whom 
the  majority  please.  Extend  the  calculation  to  the  seventeen 
States  now  choosing  electors  by  general  ticket  or  legislative 
ballot,  and  it  will  show  that  three  millions  of  souls,  a  popula- 
tion equal  to  that  which  carried  us  through  the  Revolution, 
may  have  their  votes  taken  from  them  in  the  same  way." 

The  provisions  of  Article  II.  of  the  Constitution  of  the 
United  States  relative  to  the  election  of  the  President 
and  Vice-President  are  brief  and  apparently  not  am- 
biguous. Nevertheless,  discussion  of  one  short  phrase 
continued  for  the  better  part  of  one  hundred  years,  and 
opinion  as  to  its  meaning  is  not  unanimous  to-day. 

Subdivision  2  of  Section  i  of  Article  II.  is  as  follows: 

"  Each  State  shall  appoint  in  such  manner  as  the  Legislature 
thereof  may  direct  a  number  of  electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress;  but  no  Senator  or  Represen- 
tative or  person  holding  an  office  of  trust  or  profit  under  the 
United  States  shall  be  appointed  an  elector." 

This  terse  clause,  the  outcome  of  long  debate  in  the  con- 
vention, is  so  worded  as  to  vest  the  manner  of  appoint- 
ment of  the  electors  to  which  each  State  is  entitled,  in 
the  Legislature  of  the  State.  There  is  no  obligation  on 
the  part  of  a  State  to  appoint  electors.  It  may,  if  it  so 
wills,  decline  to  participate  in  a  presidential  election,  and 
such  failure  actually  happened  in  New  York  in  1789. 
The  State  Assembly,  full  of  the  partisans  of  Clinton,  and 
strongly  Anti-Federal,  wished  to  vote  for  electors  in 
joint   convention    with  the  Senate,    which   would  have 


Provisions  of  the  Constitution  21 

given  the  Anti-Federalists  two  United  States  Senators 
and  ten  electors.  But  the  Upper  House  insisted  upon  a 
concurrent  vote,  which  would  have  given  it  one  Senator 
and  five  electors.  As  neither  House  would  recede  from 
its  position,  the  State  lost  its  electoral  .vote.  Neither 
North  Carolina  nor  Rhode  Island  had  ratiiied  the  Federal 
Constitution  when  the  first  election  occurred,  and  as  a 
consequence  neither  of  those  States  took  part  in  it. 

The  Legislature  of  each  State  is  clothed  with  absolute 
power  to  determine  in  what  manner  the  electors  shall  be 
appointed.  The  word  "appointed  "  is  highly  significant. 
It  was  designedly  employed.  It  is  n^'t  a  democratic 
term ;  there  is  no  implication  of  a  popular  election  in  it. 
The  convention  could  not  have  employed  a  stronger  ex- 
pression to  import  the  plenary  authority  of  the  State.' 
So  absolute  is  the  power  conferred  upon  each  State  legis- 
lature that  it  may,  as  was  said  by  the  eloquent  Henry  R. 
Storrs,  of  New  York,  in  the  House  of  Representatives  in 
the  spring  of  1826,  vest  the  appointment  of  electors  in 
*'a  board  of  bank  directors,  a  turnpike  corporation,  or 
a  synagogue. "  The  number  of  electors  to  which  each 
State  is  entitled  is  equal  to  the  whole  number  of  Senators 
and  Representatives  to  which  the  State  is  entitled  in 
Congress.  This  clause  is  one  of  the  compromises  of  the 
Constitution  between  the  large  and  the  small  States.  It 
recognizes  the  rights  of  a  State  as  a  separate  entity,  but 
also  the  right  of  majority  rule.  The  electoral  colleges, 
says  Bancroft,  were  to  be  the  "exact  counterpart  of  the 
joint  convention  of  the  two  Houses  in  the  representation 
of  the  States  as  units,  as  well  as  the  population  of  the 
States."  A  State,  no  matter  how  small  in  population, 
is  entitled  to  two  Senators  and  at  least  one  Representative. 
This  inequality  of  representation  gave  rise  to  the  senti- 
ment that  "the  small  States  were  the  favorites  of  the 

'  It  "  was  manifestly  used  as  conveying  the  broadest  power  of  determina- 
tion."—McPherson  vs.  Blacker,  146  U.  S.,  i. 


22  The  Electoral  System 

Constitution,"  but  this  apparent  advantage  is  nullified 
under  the  general-ticket  system,  which  makes  the  election 
turn  upon  the  vote  in  the  large  States. 

While  Subdivision  3  of  Section  i  of  Article  II.  was 
amended  in  1804,  the  original  provisions  must  be  con- 
sidered in  order  that  the  subject  may  be  fully  understood. 

Under  Subdivision  3  the  provision  is  that  the  electors 
meeting  in  their  respective  States  shall  vote  by  ballot  for 
two  persons,  one  at  least  of  whom  shall  not  be  an  inhabi- 
tant of  the  same  State  with  themselves.  This  provision 
was  a  concession  to  the  smaller  States,  who  were  fearful 
that  the  President  would  be  chosen  exclusively  from  the 
larger  States.  The  same  jealous  feeling  led  to  their  de- 
mand that  whenever  there  should  be  a  failure  to  reach  a 
choice  through  the  electoral  college,  not  less  than  five  of 
the  highest  candidates  should  be  voted  for  in  the  House 
of  Representatives. 

Subdivision  3  further  provides  that  the  electors  shall 
make  a  list  of  all  the  persons  voted  for  and  of  the  num- 
ber of  votes  for  each,  which  list  they  shall  sign  and  cer- 
tify and  transmit  sealed  to  the  seat  of  the  government  of 
the  United  States,  directed  to  the  president  of  the  Senate. 
"The  president  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted."  As  the 
Constitution  originally  stood,  it  prescribed : 

* '  The  person  having  the  greatest  number  of  votes  shall  be  the 
President  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed ;  and  if  there  be  more  than  one  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the 
House  of  Representatives  shall  immediately  choose  by  ballot 
one  of  them  for  President;  and  if  no  person  have  a  majority, 
then  from  the  five  highest  on  the  list  the  said  House  shall  in 
hke  manner  choose  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote;  a  quorum  for  this  purpose 


Provisions  of  the  Constitution  23 

shall  consist  of  a  member  or  members  from  two  thirds  of  the 
States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  In  every  case  after  the  choice  of  the  President,  the 
person  having  the  greatest  number  of  votes  of  the  electors 
shall  be  the  Vice-President.  But  if  there  should  remain  two 
or  more  who  have  equal  votes,  the  Senate  shall  choose  from 
them  by  ballot  the  Vice-President." 

A  plurality  of  the  electoral  vote  was  not  deemed  suffi- 
cient for  the  election  of  a  President.  He  must  have  a 
majority  of  the  number  of  electors,  and,  as  the  electors 
of  each  State  were  free  to  choose  two  persons,  obviously 
more  than  one  person  might  have  a  majority  of  votes. 
Hence,  where  two  persons  had  the  same  number  of  votes^ 
and  a  majority  of  votes,  the  election  was  transferred  to 
the  House  of  Representatives,  in  which  representation  is 
the  counterpart  of  that  in  the  electoral  system,  for  the 
House  of  Representatives  is  composed  of  members  from, 
each  State,  apportioned  among  the  several  States  ac- 
cording to  their  respective  numbers.  The  choice  in  the 
House  was  to  be  made  between  the  two  persons  having  a 
majority  and  the  same  number  of  electoral  votes.  If,  as 
might  happen,  no  person  had  a  majority  of  all  the  elec- 
toral votes,  the  House  was  to  choose  from  the  five  highest 
on  the  list,  but  as  a  concession  to  the  small  States  the 
vote  was  to  be  taken  by  States,  the  entire  representation 
from  each  State  having  but  one  vote,  a  majority  of  the 
States  being  necessary  to  a  choice.* 

^  Hon.  O.  P.  Morton,  in  a  speech  in  the  Senate  in  1873,  said  :  "  The  ob- 
jections to  this  constitutional  provision  for  the  election  of  a  President  need, 
only  to  be  stated,  not  argued.  First,  its  manifest  injustice.  In  such  a» 
election  each  State  is  to  have  but  one  vote.  Nevada,  with  its  forty-two» 
thousand  population,  has  an  equal  vote  with  New  York,  having  one  hun- 
dred and  four  times  as  great  a  population.  It  is  a  mockery  to  call  such  aa- 
election  just,  fair,  or  republican."  He  also  showed  that  under  the  appor- 
tionment existing  in  1873,  forty-five  members  of  the  House,  drawn  from 
nineteen  States  which  he  named,  could,  each  State  having  one  vote,  con- 
trol an  election  in  a  House  then  consisting  of  two  hundred  and  ninety-two 


24  The  Electoral  System 

Only  a  few  years  were  needed  to  develop  some  of  the 
worst  imperfections  of  the  original  electoral  plan. 

**  The  theory,"  says  Judge  Cooley/  "  failed  miserably  and 
utterly  twelve  years  after  the  plan  was  first  carried  into  effect. 
It  was  shown  in  the  presidential  election  of  1800  that  under  its 
workings  a  person  whom  no  man's  purpose  or  judgment  had 
selected  for  the  first  position  might  receive  and  was  likely  to 
receive  as  many  votes  as  the  person  whom  the  same  electors 
had  intended  to  prefer  by  their  suffrages,  and  that  when  the 
election  was  transferred  to  the  House  of  Representatives  the 
former,  though  never  intended  for  any  other  than  the  subordi- 
nate position,  might  possibly  be  chosen  over  the  real  choice 
of  a  majority  of  the  electors.  On  that  occasion,  Mr.  Burr, 
though  probably  not  the  choice  of  a  single  elector,  might  have 
been  and  probably  would  have  been  chosen  but  for  the  patri- 
otism of  Mr.  Hamilton  and  a  few  others  among  the  Federalists 
who  protested  against  it.  But  Mr.  Jefferson's  election  was 
not  accomplished  until  after  the  subject  of  filling  the  position 
in  some  extra-constitutional  mode  had  been  mooted,  the  at- 

members,  representing  thirty-seven  States.  "Nineteen  States,  or  a  ma- 
jority of  the  States  in  the  Union,  and  forty-five  members,  may  cast  their 
votes,  and  elect  a  President  of  the  United  States,  against  the  wishes  of  the 
other  two  hundred  and  forty-seven  members  of  the  House  of  Representa- 
tives. Again,  these  nineteen  States  have  an  aggregate  population  by  the 
census  of  1870  of  a  fraction  over  eight  millions  of  people,  while  the  remain- 
ing eighteen  States  have  an  aggregate  population  of  about  thirty  millions. 
So  that  nineteen  States,  having  scarcely  more  than  one  fifth  of  the  entire 
population  of  the  United  States,  may  elect  a  President  in  the  House  of 
Representatives  against  the  wishes  of  the  other  four  fifths.  And  this  by 
courtesy  has  been  called  Republican  government !  Compared  with  it  the 
rotten-borough  system  was  a  mild  and  very  small  bagatelle." 

Justice  Story  was  greatly  impressed  with  the  danger  to  the  stability  of 
the  Government  involved  in  the  necessity  of  a  choice  in  the  House,  which 
had  occurred  twice  when  he  wrote  his  Commentaries,  but  has  never  since 
taken  place,  although  he  thought  there  was  every  probability  of  its  frequent 
occurrence.  The  first  such  election  resulted  in  the  Twelfth  Amendment ; 
the  second,  which  gave  the  people  in  J.  Q.  Adams  a  minority  candidate, 
led  to  a  demand  for  a  constitutional  amendment  in  which  the  election 
•should  be  had  by  the  people  voting  in  districts. 

1  "  Method  of  Electing  the  President,"  5  Int.  Rev.  198. 


Provisions  of  the  Constitution  25 

tempt  to  do  which  would  probably  have  been  resisted  with 
force. '  * 

The  difficulty  had  been  predicted  years  before  it  arose. 
As  early  as  January  6,  1797,  an  amendment  was  offered, 
although  ineffectually,  in  the  House  of  Representatives, 
the  object  of  which  was  to  require  the  electors  to  distin- 
guish in  their  ballots  between  candidates  for  the  presi- 
dency and  the  vice-presidency.  William  L.  Smith  of 
South  Carolina,  who  offered  the  amendment,  declared 
that  great  inconveniences  might  arise  under  the  then  ex- 
isting mode,  that  "it  could  not  answer  the  end  intended  " 
by  its  framers, — **to  carry  into  effect  the  real  intention 
of  the  electors.**  A  similar  amendment  was  offered  in 
the  same  House  on  February  16,  1799,  but  the  motion 
to  refer  it  to  a  committee  was  negatived  by  a  vote  of 
fifty-six  to  twenty-eight.  Just  about  a  year  before  the 
Jefferson-Burr  contest,  on  February  4,  1800,  the  same 
idea  reappeared  in  an  amendment  presented  in  the 
House,  which  further  proposed  that  the  Senate,  in  the 
failure  of  a  choice  of  a  Vice-President  by  the  electors, 
should  make  the  selection  from  the  five  highest  on  the 
list.  On  January  24,  1798,  Humphrey  Marshall,  of  Ken- 
tucky included  this  idea  in  an  amendment  which  he  in- 
troduced in  the  Senate.  The  simple  change  eventually 
made  by  the  Twelfth  Amendment  was  not  possible  until, 
in  1 801,  the  country  was  taught  its  necessity  by  actual 
peril.  The  conservative  spirit  of  the  time  is  well  illus- 
trated by  the  statement  in  the  House,  of  Huger  of  South 
Carolina,  in  opposition  to  the  proposed  Twelfth  Amend- 
ment, that  he  confessed  he  trembled  at  the  idea  of  alter- 
ing the  Constitution,  although  he  was  attached  to  that 
part  of  it  which  gave  the  right  of  altering  it,  A  like 
feeling  prompted  Storrs  of  New  York  to  exclaim  in  the 
House  in  1826,  "The  convention  which  framed  the  Con- 
stitution seemed  to  have  been  inspired  in  their  labors." 


26  The  Electoral  System 

This  unreasoning  reverence,  by  taking  away  all  virility 
from  the  power  of  amendment,  would  check  constitu- 
tional development.  Another  defect  in  the  article  under 
consideration  lay  in  the  fact  that  while  the  clause  care- 
fully safeguarded  the  elected  chief  executive  from 
foreign  influence  and  fixed  the  minimum  age-limit  of 
eligibility,  it  left  the  door  wide  open  for  the  intrusion  of 
a  foreigner  or  of  a  person  under  age  into  the  presidential 
office  in  case  the  Vice-President  became  acting  President. 
The  Twelfth  Amendment  remedied  this  by  prescribing 
that  no  person  ineligible  to  the  presidency  should  ever 
become  Vice-President.  It  was  finally  approved  in  the 
House  of  Representatives  on  December  12,  1803.  The 
vote  was  83  yeas  to  42  nays,  and  the  Speaker's  yea  was 
requisite  to  its  passage.  It  was  ratified  by  thirteen  of  the 
seventeen  States  and  declared  in  force  September  25,  1804. 
The  convention  which  framed  the  Federal  Constitution 
provided  in  Article  VII.  thereof  that  its  ratification  by 
conventions  in  nine  States  should  be  sufficient  for  the 
establishment  of  the  Constitution  between  the  States  so 
ratifying  the  same.  It  also  drafted  a  resolution  which 
was  presented  with  the  Constitution  to  the  various  States 
for  ratification.  The  full  text  of  this  important  resolu- 
tion is  as  follows : 

''Resolved,  That  it  is  the  opinion  of  this  convention,  that  as 
soon  as  the  conventions  of  nine  States  shall  have  ratified  this 
Constitution,  the  United  States  in  Congress  assembled  should 
fix  a  day  on  which  electors  should  be  appointed  by  the  States 
which  shall  have  ratified  the  same,  and  a  day  on  which  the 
electors  should  assemble  to  vote  for  the  President,  and  the 
time  and  place  for  commencing  proceedings  under  this  Con- 
stitution; that  after  such  publication  the  electors  should 
be  appointed,  and  the  Senators  and  Representatives  elected; 
that  the  electors  should  meet  on  the  day  fixed  for  the  election 
of  the  President,  and  should  transmit  their  votes,  certified, 
signed,  sealed,  and  directed,  as  the  Constitution  requires,  to 


Provisions  of  the  Constitution  27 

the  Secretary  of  the  United  States  in  Congress  assembled; 
that  the  Senators  and  Representatives  should  convene  at  the 
time  and  place  assigned ;  that  the  Senators  should  appoint  a 
president  of  the  Senate,  for  the  sole  purpose  of  receiving, 
opening,  and  counting  the  votes  for  President;  and  that  after 
he  shall  be  chosen,  the  Congress,  together  with  the  President, 
should,  without  delay,  proceed  to  execute  the  Constitution." 

The  language  of  the  Constitution  in  Subdivision  3  of 
Section  i  of  Article  II.  (and  the  same  phraseology  reap- 
pears in  the  Twelfth  Amendment)  is,  "the  president  of 
the  Senate  shall  in  the  presence  of  the  Senate  and  House 
of  Representatives  open  all  the  certificates,  and  the  votes 
shall  then  be  counted."  The  clause  evidently  imports 
that  both  Houses  shall  assemble  in  one  place,  that  the 
president  of  the  Senate  shall  act  as  the  presiding  officer 
of  the  joint  meeting,  and  that  he  shall  open  all  the  cer- 
tificates.* No  words  of  the  Constitution  have  given  rise 
to  more  discussion  or  more  seriously  threatened  the  per- 
manency of  the  Government.  Yet  as  Senator  Edmunds 
declared  in  the  debates  of  January,  1877,  the  early  Con- 
gress found  no  difficulty  in  this  clause,  for  it  left  it  un- 
changed in  the  Twelfth  Amendment. 

^  Bancroft  says  :  "  The  Vice-President  was  never  charged  with  the  power 
to  count  the  votes.  The  person  who  counted  the  first  votes  for  President 
and  Vice-President  was  no  Vice-President,  but  a  Senator  elected  by  the 
Senate  as  its  presiding  officer,  for  that  act,  under  a  special  authority  con- 
ferred by  the  Constitution  for  that  one  occasion  when  the  Constitution  was 
to  be  set  in  motion."  The  "special  authority  conferred  by  the  Constitu- 
tion" is  an  allusion  to  the  resolution  framed  by  the  convention  of  1787, 
and  submitted  with  the  Constitution  for  popular  ratification. 

"  The  Constitution  does  not  expressly  declare  by  whom  the  votes  are  to 
be  counted  and  the  result  declared.  In  the  case  of  questionable  votes,  and 
a  closely  contested  election,  this  power  may  be  all-important  ;  and  I  pre- 
sume, in  the  absence  of  all  legislative  provision  on  the  subject,  that  the 
President  of  the  Senate  counts  the  votes,  and  determines  the  result,  and 
that  the  two  Houses  are  present  merely  as  spectators,  to  witness  the  fair- 
ness and  accuracy  of  the  transaction,  and  to  act  only  if  no  choice  be  made 
by  tlie  electors." — Kent's  Commentaries,  i.,  p.  277. 


28  The  Electoral  System 

The  article  under  consideration  further  provides  that 
Congress  may  determine  the  time  of  choosing  the  electors 
and  the  day  on  which  they  shall  give  their  votes,  which 
day  shall  be  the  same  throughout  the  United  States. 
These  are  the  only  constitutional  provisions  touching  the 
election  of  the  President  and  the  Vice-President. 

The  Constitution  provides  that  "the  ratification  of  the 
conventions  of  nine  States  shall  be  sufficient  for  the 
establishment  of  this  Constitution  between  the  States  so 
ratifying  the  same."  Such  ratification  having  been  se- 
cured, a  resolution  was  passed  by  the  Congress  of  the 
Confederation,  declaring:  That  the  first  Wednesday  in 
January,  1789,  should  be  the  day  for  appointing  electors 
in  the  several  States  which,  before  that  date,  should  have 
ratified  the  Constitution;  that  the  first  Wednesday  in 
February,  1789,  should  be  the  day  for  the  electors  to 
assemble  in  their  respective  States,  and  vote  for  a  Presi- 
dent, and  that  the  first  Wednesday  in  March  of  the  same 
year  should  be  the  time  and  the  seat  of  Congress  (at  that 
time.  New  York,)  the  place  for  commencing  proceedings 
under  the  Constitution.  When  the  first  Senate  under 
the  Constitution  convened  in  April,  1789,  after  appoint- 
ing a  president,  it  directed  the  House  of  Representatives 
to  be  advised 


**  that  a  quorum  of  the  Senate  had  been  formed,  and  a  presi- 
dent had  been  elected,  for  the  sole  purpose  of  opening  the 
certificates  and  counting  the  votes  of  the  electors  of  the  several 
States  in  the  choice  of  a  President  and  Vice-President  of  the 
United  States,  and  the  Senate  is  now  ready  in  the  Senate 
chamber  to  proceed,  in  the  presence  of  the  House,  to  discharge 
that  duty;  and  that  the  Senate  have  appointed  one  of  their 
members  to  sit  at  the  clerk's  table  to  make  a  list  of  the  votes 
as  they  shall  be  declared;  submitting  it  to  the  wisdom  of  the 
House  to  appoint  one  or  more  of  their  members  for  the  like 
purpose." 


Provisions  of  the  Constitution  29 

The  House,  upon  the  receipt  of  this  message,  resolved : 

'*  That  Mr.  Speaker,  attended  by  the  House,  do  now  with- 
draw to  the  Senate  chamber,  for  the  purpose  expressed  in 
the  message  from  the  Senate;  and  that  Mr.  Parker  and  Mr. 
Heister  be  appointed,  on  the  part  of  this  House,  to  sit  at  the 
clerk's  table  with  the  members  of  the  Senate,  and  make  a  list 
of  the  votes  as  the  same  shall  be  declared." 

Thereupon  the  Speaker,  attended  by  the  House,  with- 
drew to  the  Senate  chamber,  for  the  purpose  expressed 
in  the  message  from  the  Senate.  John  Langdon  of  New 
Hampshire,  the  president  of  the  Senate,  opened  and 
counted  the  votes  and  declared  the  result  to  the  two 
Houses.  No  question  seems  to  have  arisen  regarding 
any  of  the  certificates,  and  the  counting  was  nothing  more 
than  a  mere  computation.  The  reasonable  deduction 
from  the  language  of  the  resolution,  which  was  accepted 
by  a  Congress  some  of  whose  members  had  been  dele- 
gates to  the  convention  of  1787,  is,  that  the  duty  of 
opening  the  certificates  and  counting  the  votes  fell  to  the 
president  of  the  Senate. 

On  March  i,  1792,  Congress  passed  an  act  fixing  the 
time  and  place  in  which  the  electors  should  meet  in  the 
several  States,  and  designating  the  officer  who  should  be 
President  in  case  of  vacancies  in  the  offices  of  both  Presi- 
dent and  Vice-President.  The  act  provided  that  electors 
should  be  appointed  in  each  State  within  thirty-four  days 
preceding  the  first  Wednesday  in  December,  1792,  and 
within  thirty-four  days  preceding  the  first  Wednesday 
in  December  in  every  fourth  year  thereafter;  that  the 
electors  should  meet  and  give  their  votes  on  said  first 
Wednesday  in  December  at  such  place  in  each  State  as 
should  be  directed  by  the  Legislature  thereof;  that  the 
electors  in  each  State  should  make  and  sign  three  certifi- 
cates of  all  the  votes  by  them  given,  and  seal  up  the  same, 
certifying  on  each  that  a  list  of  the  votes  of  such  State 


30  The  Electoral  System 

for  President  and  Vice-President  was  contained  therein, 
and,  by  writing  under  their  hands  or  under  the  hands 
of  a  majority  of  them,  appoint  a  person  to  take  charge  of 
and  deliver  to  the  president  of  the  Senate  at  the  seat  of 
government,  before  the  first  Wednesday  in  January  then 
next  ensuing,  one  of  the  said  certificates,  forward  by  post 
to  the  president  of  the  Senate  at  the  seat  of  government 
one  other  of  the  certificates,  and  cause  the  third  to  be 
delivered  to  the  Federal  judge  of  the  district  in  which 
they  assemble.  The  act  further  made  it  the  duty  of  the 
executive  authority  of  each  State  to  have  three  lists  of 
the  names  of  the  electors  of  such  State  made,  certified, 
and  delivered  to  the  electors  on  or  before  the  said  first 
Wednesday  in  December,  and  the  electors  were  directed 
to  annex  one  of  said  lists  to  each  list  of  their  votes.  In 
case  no  list  of  votes  should  be  received  from  a  State  at 
the  seat  of  government  on  the  first  Wednesday  of  Jan- 
uary, the  Secretary  of  State  was  instructed  to  send  a 
special  messenger  to.  the  district  judge  for  the  list  trans- 
mitted to  him  by  the  electors.  Congress  was  then  re- 
quired to  be  in  session  on  the  second  Wednesday  in 
February  succeeding  every  meeting  of  the  electors,  and 
the  certificates  were  then  to  be  opened,  the  votes  counted, 
and  the  persons  to  fill  the  offices  of  President  and  Vice- 
President  ascertained  and  declared  according  to  the  Con- 
stitution. If  there  should  be  no  president  of  the  Senate 
at  the  seat  of  government  on  the  arrival  of  the  persons 
entrusted  with  the  lists  of  the  votes  of  the  electors,  the 
votes  were  then  to  be  delivered  into  the  temporary 
custody  of  the  Secretary  of  State,  who  was  charged  with 
the  duty  of  promptly  delivering  them  to  the  president 
of  the  Senate  upon  that  official's  arrival.  The  statute 
also  contained  provisions  declaring  what  officer  should 
be  President,  in  case  of  vacancies  in  the  office  both  of 
President  and  Vice-President. 

Except  for  a  supplementary  act  enforcing  the  provisions 


Provisions  of  the  Constitution  31 

of  the  Twelfth  Amendment,  this  legislation  continued  in 
force,  unaltered,  until  January  23,  1845,  when  Congress 
prescribed  that  the  electors  should  be  appointed  in  each 
State  on  the  Tuesday  next  after  the  first  Monday  in  the 
month  of  November  of  the  year  in  which  they  were  to  be 
appointed.  Each  State  was  also  authorized  to  provide 
by  law  for  the  filling  of  any  vacancies  in  its  college  of 
electors,  when  such  college  met  to  give  its  electoral  vote ; 
and  in  case  of  failure  to  make  a  choice  of  electors  at  an 
election  duly  held  it  was  provided  that  electors  might  be 
appointed  on  a  subsequent  day  in  such  manner  as  the 
State  might  by  law  prescribe.  There  is  express  authority 
in  the  Constitution  for  the  first  branch  of  this  legislation, 
for  that  instrument  declares  that  the  Congress  may  de- 
termine the  time  of  choosing  the  electors  and  the  day  on 
which  they  shall  give  their  votes.  But  as  each  State  has 
absolute  control  over  the  appointment  of  its  electors,  the 
latter  branch  of  the  Act  of  1845  seems  to  be  unnecessary, 
if  not  inimical  to  the  Constitution. 


CHAPTER   II 

COUNTING— 1793    UNTIL    1857 

AT  the  election  of  1793,  the  two  Houses  of  Congress 
adopted  a  mode  of  procedure  for  the  counting  of 
electoral  votes,  which,  with  changes  subsequently  to  be 
noted,  has  been  pursued  ever  since.  Each  House  ap- 
pointed a  committee'  to  join  a  committee  of  the  other, 
"to  ascertain  and  report  a  mode  of  examining  the  votes 
for  President  and  Vice-President,  and  of  notifying  the 
persons  who  shall  be  elected,  of  their  election,  and  for 
regulating  the  time,  place,  and  manner  of  administering 
the  oath  of  office  to  the  President."  The  report  to  the 
Senate  from  the  joint  committee  upon  the  mode  of  pro- 
cedure, reads, 

"that  the  two  Houses  shall  assemble  in  the  Senate  chamber; .  .  . 
that  one  person  be  appointed  a  teller  on  the  part  of  the  Senate, 
to  make  a  list  of  the  votes  as  they  shall  be  declared;  that  the 
result  shall  be  delivered  to  the  president  of  the  Senate,  who 
shall  announce  the  state  of  the  vote  and  the  persons  elected  to 
the  two  Houses  assembled  as  aforesaid;  which  shall  be  deemed 
a  declaration  of  the  persons  elected  President  and  Vice-Presi- 
dent, and  together  with  a  list  of  the  votes  be  entered  on  the 
journals  of  the  two  Houses." 

This  was  agreed  to.  A  like  report  from  the  joint  com- 
mittee to  the  House  of  Representatives  was  agreed   to 

^  The  proposition   for  a  joint   committee   originated  in   the   House  of 
Representatives . 

32 


Counting — 1793  Until  1857  33 

by  that  body,  with  this  difference,  that  the  House  appoint 
two  tellers.  These  resolutions  would  appear  to  conflict 
with  the  theory  that  the  president  of  the  Senate  had 
plenary  control  of  the  count.  No  question  arose  over  the 
electoral  vote  of  1793.  Both  Houses  assembled  in  the 
Senate  chamber,  tellers  were  appointed  in  conformity 
with  the  resolution  to  make  a  list  of  the  votes,  and  the 
president  of  the  Senate  announced  the  result.  The  jour- 
nal of  the  Senate  contains  the  following  entry : 

"  The  two  Houses  having  accordingly  assembled,  the  certifi- 
cates of  the  electors  of  the  fifteen  States  in  the  Union,  which 
came  by  express,  were  by  the  Vice-President  opened,  read, 
and  delivered  to  the  tellers  appointed  for  the  purpose,  who, 
having  examined  and  ascertained  the  votes,  presented  a  list 
of  them  to  the  Vice-President,  which  list  was  read  to  the  two 
Houses,  and  is  as  follows: 

[Here  follows  table  of  votes.] 

**  Whereupon 

"  The  Vice-President  declared  George  Washington  unani- 
mously elected  President  of  the  United  States,  for  the  period 
of  four  years,  to  commence  with  the  fourth  of  March  next; 
and 

"  John  Adams  elected  by  a  plurality  of  votes  Vice-President 
of  the  United  States  for  the  same  period,  to  commence  with 
the  fourth  day  of  March," 

In  the  counting  of  the  vote  in  1797  the  course  of  pro- 
cedure adopted  in  1793  was  substantially  followed,  except 
that  the  Senate  anticipated  the  House  in  moving  a  joint 
committee.  In  the  election  of  1797,  the  count  showed 
71  votes  for  Adams,  68  for  Jefferson,  and  59  for  Thomas 
Pinckney.  This  state  of  the  vote  became  known  during 
the  winter  of  1796,  and  as  party  feeling  was  strong, 
some  were  disposed  to  question  the  validity  of  the  vote 
for  Adams  in  Vermont  because  the  Legislature  of  that 
State  had  appointed  electors  without  first  enacting  a  law 


34  The  Electoral  System 

prescribing  the  manner  of  their  appointment/  The  Ver- 
mont certificate  was  accepted  in  the  joint  session  ap- 
parently without  question,  Mr.  Adams  as  president  of  the 
Senate  declaring  the  result  and  his  own  election.  The 
result  evinced  the  close  balance  of  parties  and  portended 
the  change  in  administration  that  was  soon  to  occur. 

In  the  spring  election  in  New  York  City  in  1800  the 
Federalists,  whose  prestige  had  fallen  all  over  the  Union, 
were  defeated.  General  Hamilton  became  so  alarmed  at 
the  probable  loss  of  the  Legislature  and  of  the  State 
electors  by  his  party  that  he  urged  Governor  Jay  im- 
mediately to  convene  the  existing  Legislature  for  the 
purpose  of  securing  a  law  providing  for  the  election  of 
electors  by  the  people  in  districts,  notwithstanding  the 
fact  that  such  a  suggestion  had  been  defeated  at  the  pre- 
ceding session  by  the  vote  of  the  Federalists  in  the  Legis- 
lature. "I  am  aware,"  wrote  Hamilton,  **that  there  are 
weighty  objections  to  the  measure,  but  the  reasons  for  it 
appear  to  me  to  outweigh  the  objections;  and  in  times 
like  these  in  which  we  live,  it  will  not  do  to  be  over- 
scrupulous." So  long  as  nothing  was  proposed  which 
integrity  would  forbid,  **the  scruples  of  delicacy  and  pro- 
priety," he  asserted,  "ought  not  to  hinder  the  taking  of 
a  legal  and  constitutional  step  to  prevent  an  atheist  in 
religion,  and  a  fanatic  in  politics,  from  getting  possession 
of  the  helm  of  state."  The  choosing  of  electors  by  the 
people  in  districts  would  ensure  a  majority  of  votes  in  the 
United  States  for  a  Federal  candidate.  Jay  refused  to 
adopt  Hamilton's  suggestion,  and  the  new  Legislature 
in  joint  ballot  chose  Democratic  electors.  In  December 
it  was  learned  that  the  electoral  votes  throughout  the 
country  stood  73  for  Jefferson;   73,  Burr;  65,  Adams; 

^Jefferson  had  previously  declared  that  "in  so  great  a  case,  substance 
and  not  form  should  prevail.  I  cannot  suppose  that  the  Vermont  constitu- 
tion has  been  strict  in  requiring  particular  forms  of  expressing  the  legisla- 
tive will." 


Counting — 1793  Until  1857  35 

64,  Pinckney;  and  that  the  tie  between  Jefferson  and 
Burr  would  throw  the  election  into  the  House  of 
Representatives. ' 

On  February  ii,  1801,  both  Houses  convened  in  the 
Senate  chamber.  One  teller  was  appointed  for  the  Senate 
and  two  for  the  House.  The  tellers  broke  the  seals  of 
the  electoral  certificates  and  opened  the  envelopes,  hand- 
ing the  certificates  to  Mr.  Jefferson,  the  president  of  the 
Senate,  who  in  turn  announced  the  vote,  the  tellers  writ- 
ing the  results  and  in  clerical  capacity  making  the  actual 
computation. 

According  to  Matthew  L.  Davis,  Burr's  intimate  friend 
and  chosen  biographer,  the  tellers,  believing  there  was 
some  informality  in  the  vote  of  Georgia,  handed  Jeffer- 
son a  package  containing  the  electoral  certificate  from 
that  State,  which  was  not  authenticated  by  the  signa- 
ture of  the  electors,  but  merely  declared,  without  sig- 
nature, that  the  votes  of  the  State  were  four  for  Jefferson 
and  four  for  Burr.  To  the  surprise  of  the  tellers,  Jeffer- 
son promptly  announced  that  the  votes  stood  four  for 
Jefferson,  and  four  for  Burr.  Mr.  Wells,  one  of  the 
tellers,  is  said  afterwards  to  have  stated  that  the  vote  of 
Georgia  was  informal,  and  that  if  the  ballots  from  that 
State  had  not  been  accepted  by  the  presiding  officer,  the 
result  would  have  brought  all  the  candidates  for  the 
presidency  before  the  House,  Pinckney  among  the  num- 
ber, and  that  Jefferson  could  not  have  been  elected 
President.      Jefferson   probably   knew   the   votes    were 

*  "  One  vote  for  Jefferson  in  Pennsylvania  deserves  notice,  since  it  is  be- 
lieved to  have  been  given  by  the  only  elector  in  the  history  of  the  country 
who  has  ever  betrayed  the  trust  reposed  in  him  by  those  who  supported 
him,  .  .  .  The  treachery  of  this  elector  was  the  subject  of  an  exceed- 
ingly plain-spoken  communication  in  the  United  States  Gazette  from  an  ex- 
asperated Federalist.  'What! '  he  exclaimed,  '  do  I  chuse  Samuel  Miles  to 
determine  for  me  whether  John  Adams  or  Thomas  Jefferson  shall  be  Presi- 
dent? No  !  I  chuse  him  to  act,  not  to  think.'  " — Stanwood,  A  History  of 
the  Presidency,  pp.  50,  51. 


3^  The  Electoral  System 

regular,  but  uncertified  through  simple  inadvertence,  and 
read  them  as  a  matter  of  course,  without  reflection  upon 
the  remote  consequence  that  might  ensue  if  they  were 
not  counted. 

The  whole  number  of  electors  voting  was  138,  of  which 
number  Thomas  Jefferson  and  Aaron  Burr  had  a  majority ; 
but  as  the  vote  for  each  was  equal  there  was  no  choice, 
and  consequently  the  duty  of  electing  a  President  devolved 
upon  the  House  of  Representatives.  The  two  Houses 
then  separated  and  the  representatives  returned  to  their 
own  chamber.  The  roll  was  called,  the  gallery  cleared, 
and  the  voting  begun.  The  balloting  continued  in  the 
House  from  February  11  to  February  17,  1801,  without 
adjournment,  and  upon  the  thirty-sixth  ballot  the  Speaker 
declared  that  the  votes  of  ten  States  had  been  given  to 
Jefferson,  the  votes  of  four  States  had  been  given  to 
Aaron  Burr,  and  the  votes  of  two  States  (New  Jersey 

and  Delaware)  had  been  given  to .     The  ten  States 

which  finally  voted  for  Jefferson  were  New  York,  Penn- 
sylvania, Virginia,  North  Carolina,  South  Carolina, 
Georgia,  Kentucky,  Tennessee,  Vermont,  and  Maryland. 

Hamilton  thus  extolled  the  method  adopted  by  the 
convention  of  1787: 

**  The  mode  of  appointment  of  the  chief  magistrate  of  the 
United  States  is  almost  the  only  part  of  the  system,  of  any 
consequence,  which  has  escaped  without  severe  censure,  or 
which  has  received  the  slightest  mark  of  approbation  from  its 
opponents.  The  most  plausible  of  these,  who  has  appeared 
in  print,  has  even  deigned  to  admit  that  the  election  of  the 
president  is  pretty  well  guarded.  I  venture  somewhat  further, 
and  hesitate  not  to  affirm,  that  if  the  manner  of  it  be  not  per- 
fect, it  is  at  least  excellent.  It  unites  in  an  eminent  degree  all 
the  advantages  the  union  of  which  was  to  be  wished  for." 

The  cardinal  merit  of  the  system,  according  to  other  ad- 
vocates, was  that  it  would  prevent  intrigue  and  cabal,  yet 


f 

I 


Counting — 1793  Until  1857  37 

the  strange  fact  is  that  the  system  adopted  by  the  con- 
vention encouraged  the  evils  it  was  expected  to  avoid. 
Burr,  whether  justly  or  unjustly,  was  charged  with  nego- 
tiating with  Federalist  electors  to  obtain  their  support. 
During  the  vote  in  the  House  of  Representatives,  the 
delegations  from  Vermont  and  Maryland  were  divided 
until  the  thirty-sixth  ballot.  The  Federalist  electors 
were  violently  opposed  to  the  election  of  Jefferson,  but 
at  the  last,  because  of  an  alleged  promise  that  certain 
Federalist  officials  should  not  be  removed  if  Jefferson 
were  elected,  the  opposition  of  Vermont  was  withdrawn, 
blank  ballots  were  voted  by  the  Federalists  from  Mary- 
land, and  thus  the  contest  was  terminated. 

The  election  of  1801  demonstrated  the  unwisdom  of 
voting  for  both  President  and  Vice-President  upon  the 
same  ballot.  It  showed  the  danger  of  a  tie  vote.  It  re- 
vealed the  innumerable  temptations  to  candidates  and 
electors  to  enter  into  bargains  and  coalitions.  It  proved 
the  possibility  of  electing  a  President  from  one  party  and 
a  Vice-President  from  another.  To  obviate  these  evils, 
the  Twelfth  Amendment  was  adopted.  This  amendment 
provides  that  if  no  person  have  a  majority  of  all  the  elec- 
toral votes,  the  choice  of  President  shall  be  made  by  the 
House  from  the  persons  having  the  highest  number,  not 
exceeding  three ;  and  in  distinct  ballots  the  electors  of  the 
several  States  are  to  vote  for  Vice-President.  That  per- 
son shall  become  Vice-President  who  has  the  greatest 
number  of  electoral  votes,  if  it  be  a  majority  of  the  whole 
number  of  electors  appointed.  If  no  person  have  such 
majority,  then  the  senate  shall  choose  from  the  two 
highest  numbers  on  the  list  the  Vice-President.  Two 
thirds  of  the  Senators  shall  constitute  a  quorum,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

"This  amendment,"  says  Judge  Story,  "has  alternately 
been  the  subject  of  praise  and  blame,  and  experience  alone 


38  The  Electoral  System 

can  decide  whether  the  changes  proposed  by  it  are  in  all  re- 
spects for  the  better,  or  the  worse.  In  some  respects  it  is  a 
substantial  improvement.  In  the  first  place,  under  the  original 
mode,  the  Senate  was  restrained  from  acting  until  the  House 
of  Representatives  had  made  their  selection,  which,  if  parties 
ran  high,  might  be  considerably  delayed.  By  the  amendment 
the  Senate  may  proceed  to  a  choice  of  the  Vice-President  im- 
mediately on  ascertaining  the  returns  of  the  votes.  In  the 
next  place,  under  the  original  mode,  if  no  choice  should  be 
made  of  a  President  by  the  House  of  Representatives  until 
after  the  expiration  of  the  term  of  the  preceding  officer,  there 
would  be  no  person  to  perform  the  functions  of  the  office,  and 
an  interregnum  would  ensue,  and  a  total  suspension  of  the 
powers  of  Government.  By  the  amendment,  the  new  Vice- 
President  would  in  such  case  act  as  President.  By  the  original 
mode,  the  Senate  are  to  elect  the  Vice-President  by  ballot;  by 
the  amendment,  the  mode  of  choice  is  left  open,  so  that  it  may 
be  viva  voce.  Whether  this  be  an  improvement,  or  not,  may 
be  doubted." 

No  special  question  as  to  the  validity  of  any  of  the 
electoral  certificates  arose  for  a  number  of  years,  but  the 
day  before  the  opening  of  the  electoral  votes  in  1805 
the  Senate  passed  a  resolution  that  it  w^ould  "be  ready 
to  receive  the  House  of  Representatives  in  the  Senate 
chamber  on  the  13th  of  February  for  the  purpose  of  be- 
ing present  at  the  opening  and  counting  of  votes  for  the 
President  and  Vice-President  of  the  United  States." 
The  House  of  Representatives  passed  a  resolution  for  the 
appointment  of  a  committee  of  the  House  **to  join  such 
committee  as  might  be  appointed  on  the  part  of  the 
Senate  to  ascertain  and  report  a  mode  of  examining  the 
votes  for  President  and  Vice-President  "  ;  but  the  Senate 
did  not  concur  and  appointed  no  committee  of  its  own. 
The  House  tellers  appear,  however,  to  have  participated 
with  the  teller  appointed  by  the  Senate  in  the  examina- 
tion of  the  returns  at  the  joint  session.     The  remarks  of 


Counting — 1793  Until  1857  39 

Aaron  Burr,  the  Vice-President,  to  the  two  Houses  as- 
sembled in  joint  meeting  have  often  been  quoted  as  evi- 
dence of  the  lack  of  power  of  the  presiding  officer.  He 
said:  "You  will  now  proceed,  gentlemen,  to  count  the 
votes,  as  the  Constitution  and  laws  direct."  Little  or  no 
weight  is  to  be  attached  to  this  utterance,  for  it  is  counter- 
acted by  the  certificate  prepared  by  the  Senate  on  the  fol- 
lowing day  and  signed  by  Burr,  wherein  it  is  declared  that 
"the  under-written  Vice-President  of  the  United  States 
and  president  of  the  Senate  did  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates and  count  all  the  votes  of  the  electors  for  a  Presi- 
dent and  Vice-President  of  the  United  States." 

In  1809,  ^  joint  committee  was  raised  in  accordance 
with  the  precedent  set  in  1797  and  followed  in  1801,  and 
the  two  Houses  assembled  in  the  House  of  Representa- 
tives as  in  1797.  In  the  discussion  in  the  House  over  the 
form  of  the  invitation  to  the  Senate,  Randolph  objected 
to  the  Speaker's  vacating  his  chair,  or  to  any  one  else 
taking  his  place,  except  by  consent  of  the  whole  House. 
Nicholas,  of  Virginia  then  moved  that  when  the-  mem- 
bers of  the  Senate  were  introduced  the  Speaker  should  re- 
linquish the  chair  to  the  president  of  the  Senate ;  and  this 
was  agreed  to.  Petitions  had  been  previously  received 
in  the  House  of  Representatives  from  citizens  of  Massa- 
chusetts, remonstrating  against  the  mode  of  appointment 
of  electors'  in  that  State  "as  irregular  and  unconsti- 
tutional." The  real  difficulty  was  that  the  Federalist 
legislature  had  passed  a  resolution  reinvesting  itself  with 
the  appointment  of  electors,  and  had  refused  to  submit  it 
to  Governor  Sullivan  on  the  ground  that  he  had  nothing 
to  do  with  the  mode  of  appointment,  which,  by  the 
Federal  Constitution,  was  exclusively  vested  in  the  legis- 
lature. The  House  sent  the  petitions  to  the  Senate, 
where  they  were  laid  on  the  table.  In  the  joint  session, 
objection  was  made  to  the  returns  from  one  of  the  States 


40  Th€  Electoral  System 

(Massachusetts)  as  defective  for  lack  of  the  governor's 
certificate,  but  this  was  disregarded.  One  of  the  votes 
from  Kentucky  (that  of  elector  Walton)  was  missing,  but 
when  the  letter  of  the  elector  explaining  his  inability  to 
attend  the  electoral  college  was  brought  to  the  attention 
of  the  House  of  Representatives  the  day  after  the  count, 
and  a  motion  was  made  to  amend  the  record  of  the  pro- 
ceedings so  as  to  state  the  reason  why  the  vote  of  the 
State  was  deficient,  the  motion  was  negatived. 

In  1813,  joint  committees  were  again  appointed,  but  no 
special  question  arose.  Ever  since  1809  both  Houses 
have  convened  in  the  House  of  Representatives  to  wit- 
ness the  electoral  count.  The  number  of  States  in  1817 
had  risen  to  nineteen,  Indiana  having  been  admitted 
since  the  last  presidential  election.  Indiana  had  adopted 
a  constitution  in  June,  1816,  and  was  admitted  to  the 
Union  on  December  nth  of  that  year,  and  the  question 
which  arose  over  the  electoral  count  of  18 17  related  to 
the  right  of  Indiana  to  vote  for  presidential  electors. 
Until  1817  the  message  had  been  worded,  "to  attend  at 
or  in  the  opening  and  counting  of  the  votes,"  but  whether 
by  inadvertence  or  otherwise  the  House  of  Representa- 
tives on  this  occasion  notified  the  Senate  of  its  readiness 
"to  proceed  agreeably  to  the  mutual  resolution  of  yester- 
day to  open  and  count  the  votes  for  President  and  Vice- 
President."  Indiana's  votes  presented  a  novel  question. 
John  W.  Taylor,  of  New  York,  addressing  the  Speaker 
of  the  House  (Clay),  objected  to  the  reading  and  record- 
ing of  the  votes  from  Indiana,  but  the  Speaker  inter- 
rupted him  with  the  remark  that  the  two  Houses  had 
met  for  the  sole  purpose  of  performing  the  constitutional 
duty  they  were  then  discharging  and  that  while  so  acting 
in  joint  meeting  they  could  consider  no  proposition  and 
perform  no  business  not  prescribed  by  the  Constitution. 
Upon  motion  of  Senator  Varnum,  of  Massachusetts  the 
Senate  decided  to  withdraw  and  did  so ;  and  discussion 


Counting — 1793  Until  1857  4^ 

upon  the  reception  of  Indiana's  vote  proceeded  in  the 
House  alone,  the  point  of  Taylor's  objection  being  that 
the  joint  resolution  admitting  Indiana  into  the  Union 
was  subsequent  in  date  to  the  day  prescribed  for  the 
meeting  and  voting  of  the  electors;  that  Indiana  was  not 
a  State  on  that  day,  and  no  more  entitled  to  participate  in 
the  election  than  Missouri  or  any  other  Territory.  Tay- 
lor urged  upon  the  House  the  importance  of  a  decision 
upon  the  question,  and  proposed  a  joint  resolution  declar- 
ing that  Indiana's  votes  were  illegal  and  should  not  be 
counted.  The  jealousy  with  which  the  House  main- 
tained its  assumed  prerogatives  is  shown  in  the  sugges- 
tion of  Bassett,  of  Virginia,  that  the  resolution  should 
not  be  joint,  lest  it  become  a  precedent  that  might,  in 
case  of  a  tie,  "deprive  this  House  of  one  of  its  powers  by 
permitting  the  Senate  to  participate  in  this  question." 
No  conclusion  was  reached,  for  a  motion  that  the  votes 
of  the  State  were  properly  and  legally  given  and  ought 
to  be  counted  was  indefinitely  postponed,  the  Senate  in- 
vited to  return,  the  joint  session  resumed,  and  the  votes, 
including  those  of  Indiana,  were  counted.  Their  accept- 
ance had  no  effect  upon  the  result,  as  Monroe  had  183 
electoral  votes  out  of  a  total  of  217  cast;  or,  exclusive  of 
Indiana,  180  out  of  214.'  The  Senate  journal  was  subse- 
quently ordered  changed,  to  efface  all  record  of  a  some- 
what similar  debate  in  that  body  during  the  recess. 
From  this  period  onward,  joint  sessions  were  frequently 
interrupted  in  order  to  permit  the  two  Houses  separately 
to  debate  upon  the  acceptance  or  rejection  of  returns, 
and  were  resumed  when  those  discussions  were  con- 
cluded. 

Between  February,  181 7,  and  February  14,  1821,  when 
the  next  electoral  count  took  place,  new  States  had  been 
added  to  the  Union:   Mississippi,   December   10,    1817; 

^  The  full  electoral  vote  would  have  been  221  ;  but  three  Federalist  elec- 
tors chosen  in  Maryland,  and  one  of  the  Delaware  electors,  did  not  vote. 


42  The  Electoral  System 

Illinois,  December  3,  1818;  Alabama,  December  14,  1819; 
and  Maine,  March  15,  1820.  Missouri  adopted  a  constitu- 
tion in  July,  1820,  but  was  not  formally  acknowledged  as 
a  State  until  August  10,  1821.  Ever  since  the  organiza- 
tion of  the  government,  it  had  been  the  practice  to  admit 
a  free  and  a  slave  State  simultaneously,  or  nearly  so, 
thereby  preserving  the  balance  of  power  in  the  Senate  be- 
tween the  North  and  the  South.  Maine  had  been  ad- 
mitted in  1820,  but  Missouri's  entrance  had  been  delayed 
by  the  controversy  over  her  constitution  and  the  Missouri 
Compromise,  and  it  was  not  until  the  adoption  of  the 
Compromise  that  Congress  consented  to  her  admission 
with  a  constitution  favoring  slavery.  Further  delay  en- 
sued because  of  a  provision  inserted  in  her  constitution 
that  was  aimed  at  forbidding  the  presence  of  free  negroes 
or  mulattoes  within  her  borders.  The  House  of  Repre- 
sentatives insisted  that  this  objectionable  feature  should 
be  expunged  before  the  State  should  be  allowed  to  enter 
the  Union,  but  the  Senate  objected  that  the  sovereignty 
of  the  State  would  be  infringed.  A  settlement  was  ulti- 
mately reached  by  which  it  was  agreed  that  Missouri 
should  be  admitted  upon  the  solemn  pledge  of  her  Legis- 
lature to  the  next  meeting  of  Congress  that  her  constitu- 
tion should  not  be  construed  to  authorize  the  passage  of 
any  act,  and  that  no  act  should  be  passed,  by  which  any 
of  the  citizens  of  either  of  the  States,  whether  white  or 
colored,  should  be  excluded  from  the  enjoyment  of  any 
of  the  privileges  and  immunities  to  which  they  were 
entitled  under  the  Constitution  of  the  United  States. 
Missouri  accepted  these  conditions.  But  the  agreement 
between  the  two  Houses  was  not  effected  until  the  end 
of  the  session,  and  debate  was  in  progress  when  the  day 
for  the  joint  session  of  the  two  Houses  to  count  the 
electoral  vote  arrived. 

Although  Missouri  was  not  formally  admitted  to  the 
Union   until  August    10,    1821,   she  elected  electors  of 


Counting — 1793  Until  1857  43 

President  and  Vice-President  in  December,  1820,  and 
transmitted  her  electoral  votes  to  the  capital.  The  elec- 
tion of  Monroe  and  Tompkins  was  assured  without  the 
votes  of  Missouri ;  but  so  excited  was  the  state  of  public 
feeling,  and  so  pronounced  the  difference  of  opinion  be- 
tween the  House  and  the  Senate,  that  the  two  Houses 
could  not  be  expected  to  concur  in  accepting  or  rejecting 
the  votes.  Hence  arose  a  long  and  acrimonious  discus- 
sion as  to  the  mode  of  counting  the  electoral  vote.  For 
the  first  time  in  the  history  of  the  country,  the  theory  of 
a  casus  omissus  in  the  Constitution  was  advanced. 

A  few  days  before  the  joint  meeting.  Clay  offered  a 
resolution  in  the  House  of  Representatives  to  the  effect 
that  if  any  objection  should  be  made  to  the  votes  of 
Missouri,  the  counting  or  omitting  to  count  which  should 
not  essentially  change  the  result  of  the  election,  that  re- 
sult should  be  reported  in  the  following  manner: 

"  Were  the  votes  of  Missouri  to  be  counted,  the  result  would 
be,  for  A.  B.,  for  President  of  the  United  States, —  votes;  if 
not  counted,  for  A.  B.,  as  President  of  the  United  States, — 
votes;  but  in  either  event  A.  B.  is  elected  President  of  the 
United  States;  and  in  the  same  manner  for  Vice-President." 

Clay's  argument  in  the  House,  in  moving  the  resolution 
for  the  ** alternative  count,"  well  presents  the  issue  that 
arose  over  Missouri's  votes. 

"Suppose,"  he  said,  "this  resolution  not  adopted,  the 
president  of  the  Senate  will  proceed  to  open  and  count  the 
votes;  and  would  the  House  allow  that  officer,  singly  and 
alone,  thus  virtually  to  decide  the  question  of  the  legality  of 
the  votes?  If  not,  how,  then,  were  they  to  proceed?  Was  it 
to  be  settled  by  the  decision  of  the  two  Houses  conjointly,  or 
of  the  two  Houses  separately?  One  House  would  say  the 
votes  ought  to  be  counted,  the  other  that  they  ought  not;  and 
then  the  votes  would  be  lost  altogether." 


44  The  Electoral  System 

If  the  question  were  decided  in  a  joint  meeting,  the  ma- 
jority of  the  two  Houses  would  unquestionably  favor 
the  counting.  There  was,  Clay  said,  "no  mode  pointed 
out  in  the  Constitution  of  settling  litigated  questions 
arising  in  the  discharge  of  this  subject,"  and  he  thought 
*'it  would  be  proper,  either  by  some  act  of  derivative 
legislation  or  by  an  amendment  of  the  Constitution  itself, 
to  supply  the  defect."  In  Clay's  argument  "that  the 
votes  would  be  lost  altogether,"  unless  both  Houses 
agreed  they  should  be  counted,  there  is  implied  the 
power  of  either  House  to  reject  the  vote  of  a  State.  This 
was  the  idea  at  the  basis  of  the  famous  twenty-second 
joint  rule,  adopted  by  the  Houses  of  Congress  in  1865. 

After  debate  the  House  agreed  to  the  resolution  by  a 
sectional  vote  of  90  to  6j,  and  the  Senate,  on  motion  of 
Barbour,  of  Virginia,  also  adopted  it.  On  the  14th  of 
February,  just  prior  to  the  meeting  of  the  Houses  in 
joint  convention,  a  message  from  the  House  informed 
the  Senate,  which  was  dominated  by  the  pro-slavery 
leaders,  that  the  House  had  rejected  a  resolution  of 
the  Senate  declaring  the  admission  of  Missouri  into  the 
Union.  When  the  certificates  of  the  Missouri  electors 
were  opened,  objection  was  made  by  Representative 
Livermore,  of  New  Hampshire  to  the  counting  of  the 
votes,  and  Floyd,  of  Virginia  asked  the  presiding  officer 
whether  or  not  the  votes  of  Missouri  had  been  counted. 
The  Houses  then  separated,  following  the  precedent  of 
1 817,  and  when  they  reconvened  the  president  of  the 
Senate  received  the  votes  of  Missouri,  and  declared,  after 
interruption  by  Floyd  and  Randolph,  both  of  whom  were 
pronounced  out  of  order,  that  the  whole  number  of  elec- 
tors appointed,  inclusive  of  those  of  Missouri,  was  235, 
or,  exclusive  of  Missouri,  232,  and  that  Mr.  Monroe  and 
Mr.  Tompkins  had  each  more  than  a  majority  of  the 
larger  vote,  and  hence  were  elected  respectively  President 
and  Vice-President. 


Counting — 1793  Until  1857  45 

In  the  recess,  the  discussion  in  the  House,  which  arose 
upon  Floyd's  motion  that  Missouri  was  one  of  the  States 
of  the  Union  and  that  her  votes  ought  to  be  received  and 
counted,  disclosed  the  uncertainty  which  prevailed  re- 
garding the  proper  practice  under  the  Constitution.  The 
advocates  of  the  acceptance  of  Missouri's  votes,  promi- 
nent among  whom  were  Randolph  and  Archer,  well 
aware  that  the  Senate  was  in  sympathy  with  them, 
argued  that  the  president  of  the  Senate  WcS  to  count  the 
votes,  and  that  the  House  of  Representatives  had  no 
right  to  determine  whether  any  vote  should  be  received 
or  rejected.  Floyd,  in  moving  that  *'  the  electoral  votes 
of  Missouri  have  this  day  been  counted  and  do  constitute 
a  part  of  the  majority  of  231  votes  given  for  President 
and  of  218  votes  for  Vice-President,"  said:  "Let  us  know 
whether  Missouri  be  a  State  of  the  Union  or  not.  Sir, 
we  cannot  take  another  step  without  hurling  this  Govern- 
ment into  the  gulf  of  destruction.  For  one,  I  say  I  have 
gone  as  far  as  I  can  go  in  the  way  of  compromise ;  and  if 
there  is  to  be  a  compromise  beyond  that  point,  it  must 
be  at  the  edge  of  the  sword."  Randolph  supported 
Floyd  at  great  length  and  with  much  vehemence,  but 
finally  gave  place  to  Clay,  who  moved  to  table  Floyd's 
resolution,  which  was  carried  by  a  large  majority.  On 
Clay's  motion  the  Senate  was  invited  to  return  "to  con- 
tinue the  enumeration  of  votes,  according  to  the  joint 
resolution  agreed  upon  between  the  two  Houses."  In 
the  resumed  joint  session  when  the  votes  had  all  been 
enumerated,  as  the  president  of  the  Senate  was  declaring 
the  result,  Floyd  rose  to  inquire  whether  Missouri's  votes 
were  to  be  counted  or  not.  Randolph  also  tried  to  inter- 
pose, but  both  were  ruled  out  of  order  and  the  election 
announced  amid  considerable  murmuring,  in  accordance 
with  the  "alternative  count  "  provided  for  in  Clay's  and 
Barbour's  resolutions.  As  the  Senate  retired  from  the 
joint  meeting,  Randolph  was  heard  addressing  the  House. 


4^  The  Electoral  System 

Although  wrong  in  his  previous  contention  that  the  votes 
of  Missouri  should  be  counted,  he  correctly  declared  that 
there  had  never  before  been  any  other  proclamation  than 
one  stating  "the  whole  number  of  votes  given  in," 
whereas,  upon  this  occasion,  no  such  annunciation  was 
made.  He  therefore  moved  two  resolutions:  one,  that 
the  electoral  vote  of  the  "State  of  Missouri"  had  that 
day  been  counted,  and  the  other  that  the  whole  number 
of  electors  appointed  and  votes  given  had  not  been  an- 
nounced agreeably  to  the  provisions  of  the  Constitution, 
and  that  therefore  the  proceedings  were  irregular  and 
illegal.  Before  a  vote  could  be  had  upon  these  resolu- 
tions a  motion  to  adjourn  was  carried. 

The  second  occasion  on  which  the  duty  of  electing  a 
President  devolved  upon  the  House  of  Representatives 
was  in  1825,  when  John  Quincy  Adams,  Jackson,  Clay, 
and  Crawford  were  the  leading  candidates  for  the  presi- 
dency. It  was  known  throughout  the  Union  in  advance 
of  the  opening  of  the  certificates  in  February  that  no 
candidate  had  a  majority  of  the  electoral  votes,  and  that 
the  election  would  be  thrown  into  the  House  of  Repre- 
sentatives, unless  votes  for  one  candidate  should  be  trans- 
ferred to  another.  Under  the  Twelfth  Amendment  the 
House  was  limited  to  a  choice  from  the  three  highest 
names  upon  the  list.  The  usual  joint  committee  of  both 
Houses  was  raised,  but  the  concurrent  resolution,  antici- 
pating the  result  of  the  electoral  vote,  provided,  as  in 
1 801,  that  if  it  should  appear  on  the  opening  of  the  cer- 
tificates and  the  counting  of  the  votes  that  no  person  had 
a  majority  of  the  votes  of  the  whole  number  of  electors 
appointed,  and  that  a  member  or  members  from  two 
thirds  of  the  States  were  present,  the  House  should  im- 
mediately proceed  by  ballot  to  choose  a  President  from 
the  three  highest  on  the  list  of  the  electoral  votes. 

On  February  9,  1825,  both  the  Houses  assembled 
in   the   House   of  Representatives.      Tazewell,   of  Vir- 


Counting — 1793  Until  1857  47 

ginia,  was  appointed  a  teller  for  the  Senate;  Taylor,  of 
New  York,  and  Barbour,  of  Virginia,  were  the  tellers  for 
the  House.  The  president  of  the  Senate  opened  the 
certificates  and  handed  them  to  the  tellers,  who  recorded 
the  count,  which  showed  that  out  of  182  electoral  votes 
Adams  had  84,  Clay  37,  Crawford  41,  and  Jackson  99; 
Calhoun,  receiving  182  electoral  votes,  was  declared 
elected  Vice-President.  The  House  was  extremely  punc- 
tilious about  its  assumed  prerogatives,  for  its  tellers 
presented  themselves  in  front  of  the  Speaker  of  the 
House,  and  not  to  the  president  of  the  Senate.  No  one 
having  been  elected  President,  the  Senate  withdrew,  and 
the  House  proceeded  to  ballot  for  a  President,  with  the 
result  that  Adams  received  the  votes  of  thirteen  States, 
Jackson  of  seven,  and  Crawford  of  four.  On  no  occasion 
since  1825  has  an  election  for  the  presidency  fallen  to  the 
House  of  Representatives. 

The  electors,  in  1824,  were  chosen  by  the  Legislature  in 
Delaware,  Georgia,  Louisiana,  New  York,  South  Caro- 
lina, and  Vermont.  In  other  States,  the  popular  vote, 
dismissing  minor  figures,  stood  as  follows :  For  Jackson, 
155,800;  Adams,  105,300;  Crawford,  44,200;  Clay,  46,- 
500.  Jackson,  as  a  military  hero,  was  high  in  public 
esteem,  and  a  feeling  not  altogether  unreasonable  pre- 
vailed in  many  quarters  that  the  large  popular  plurality 
for  him  indicated  that  he  ought  to  be  chosen  President. 
The  idea  that  Jackson,  as  the  most  popular  candidate, 
ought  to  have  been  selected  by  the  House  of  Represent- 
atives undoubtedly  aided  in  creating  the  sentiment  which 
was  successful  in  placing  him  in  the  presidential  chair  in 
1829.*     As  in  1 801,  the  election  in  the  House  of  Repre- 

^  The  New  York  Senate,  in  1828,  passed  a  series  of  resolutions  declaring 
that  the  election  of  John  Quincy  Adams  by  the  House  of  Representatives 
was  in  defiance  of  the  clear  and  undoubted  sense  of  the  American  people, 
and  in  consequence  of  systematic  efforts  to  prevent  a  choice  by  the  elec- 
toral college,  and  urging  an  amendment  to  the  Constitution,  giving  the 
choice  of  President  and  Vice-President  to  the  people. 


4^  The  Electoral  System 

sentatives  was  not  conducted  without  secret  intrigues  or 
unjust  calumnies.  The  unfounded  charge  against  Clay  is 
well  known,  that  he  bartered  votes  in  his  favor  to  Adams 
in  consideration  of  the  promise  of  future  preferment. 
And  when  Adams  offered  him  the  portfolio  of  State, 
Clay's  enemies,  unsupported  as  was  the  charge  of  a  bar- 
gain, professed  themselves  convinced  of  its  existence,  nor 
did  that  distinguished  patriot  ever  fully  escape  from  this 
imputation.' 

^  In  1837,  the  resolution  adopted  by  the  two  Houses 
provided  for  counting  Michigan's  vote  in  the  alternative. 
Michigan's  case  was  somewhat  like  that  of  Missouri  in 
1 82 1.  The  State  was  admitted  by  formal  proclamation 
on  January  26,  1837.  Hence  she  was  not  a  State  when 
the  electors  voted,  but  was  such  at  the  date  of  the 
electoral  count.  When  the  Houses  convened  in  joint 
meeting,  the  president  of  the  Senate  announced  that  in 
pursuance  of  the  provisions  of  the  Constitution  he  would 
proceed  to  open  the  votes  and  deliver  them  to  the  tellers 
in  order  that  they  might  be  counted ;  after  the  report  of 
the  tellers  he  declared  that  if  the  votes  of  Michigan  were 
to  be  counted,  the  result  would  be,  for  Martin  Van  Buren 
for  President  of  the  United  States,  170  votes,  but  with- 

'  The  presidential  election  of  1824  is  worthy  of  note  because  it  brought 
to  an  end  the  practice  of  caucus  nominations  for  the  presidency  by  mem- 
bers of  Congress. 

No  objections  were  made,  says  Stanwood,  to  any  votes  at  the  time  of 
the  count ;  but  in  May,  after  the  election,  Mr.  Wilde  of  Georgia  introduced 
in  the  House  of  Representatives  a  resolution  that  a  message  be  sent  to  the 
Senate  requesting  copies  of  all  the  certificates  of  electoral  votes.  In  a  long 
speech  he  gave  his  reason  for  making  this  motion,  which  was  that  few  of 
the  certificates  were  strictly  correct  and  in  due  form.  They  either  did  not 
assert  that  the  electors  voted  in  district  ballots  for  President  and  Vice- 
President,  or  did  not  report  a  vote  by  ballot, — district  ballots  being  required 
by  the  Constitution.  The  resolution  was  opposed  on  the  ground  that  it  was 
too  late  and  that  "  the  elections  in  the  States  are  not  subject  to  revision  by 
Congress,  and,  on  motion,  was  laid  on  the  table." — Stanwood,  A  History 
of  the  Presidency^  p.  137. 


Counting — 1793  Until  1857  49 

out  the  votes  of  Michigan,  167  votes,  and  in  either  event 
Van  Buren  was  elected. 

The  effect  of  the  choice  by  a  State  of  electors  declared 
to  be  ineligible  by  the  Federal  Constitution  was  first  dis- 
cussed in  the  proceedings  of  this  year.  When  the  usual 
resolution  for  the  appointment  of  a  committee  was  moved 
in  the  Senate,  an  amendment  was  voted  on  Clay's  motion 
to  authorize  the  committee 

"  to  inquire  into  the  expediency  of  ascertaining  whether  any 
votes  were  given  at  the  recent  election  contrary  to  the  prohi- 
bition contained  in  the  second  section  of  the  second  article  of 
the  Constitution;  and,  if  such  votes  were  given,  what  ought  to 
be  done  with  them;  and  whether  any  and  what  provision  ought 
to  be  made  for  securing  the  faithful  observance  in  future  of 
that  section  of  the  Constitution." 

The  resolution  was  approved  by  the  House.  The  report 
of  the  committee,  of  which  Felix  Grundy,  Henry  Clay, 
and  Silas  Wright  were  members  on  the  part  of  the  Senate, 
contained  the  following  interesting  and  important  clauses : 

"  The  committee  are  of  opinion  that  the  second  section  of 
the  second  article  of  the  Constitution  which  declares  that  '  no 
Senator  or  Representative,  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States,  shall  be  appointed  an  elector, 
ought  to  be  carried,  in  its  whole  spirit,  into  rigid  execution,  in 
order  to  prevent  officers  of  the  general  Government  from 
bringing  their  official  power  to  influence  the  elections  of  Presi- 
dent and  Vice-President  of  the  United  States.  This  provision 
of  the  Constitution,  it  is  believed,  excludes  and  disquafifies 
deputy  postmasters  from  the  appointment  of  electors;  and  the 
disqualification  relates  to  the  time  of  the  appointment,  and  that 
a  resignation  of  the  office  of  deputy  postmaster,  after  his  ap- 
pointment as  elector,  would  not  entitle  him  to  vote  as  elector 
under  the  Constitution." 

"  Should  a  case  occur  in  which  it  became  necessary  to 
ascertain  and  determine  upon  the  qualifications  of  electors  of 
President  and  Vice-President  of  the  United  States,  the  im- 


so  The  Electoral  System 

portant  question  would  be  presented:  What  tribunal  would, 
under  the  Constitution,  be  competent  to  decide?  Whether  the 
respective  colleges  of  electors  in  the  different  States  should 
decide  upon  the  qualifications  of  their  own  members,  or  Con- 
gress should  exercise  the  power,  is  a  question  which  the  com- 
mittee are  of  opinion  ought  to  be  settled  by  a  permanent 
provision  upon  the  subject." 

In  the  debate  in  the  House  of  Representatives  upon 
the  report  of  the  joint  committee,  Mr.  Francis  Thomas, 
chairman  of  the  House  committee,  stated  that  the  com- 
mittee came  unanimously  to  the  conclusion  that  they 
(the  postmasters  in  question)  were  not  eligible  at  the  time 
they  were  elected  and  therefore  the  whole  proceeding  was 
vitiated  ab  initio.  The  notion  that  the  title  of  an  elector 
de  facto,  an  elector  who  had  cast  his  ballot  for  President 
or  Vice-President,  could  not  be  impeached,  was  appar- 
ently not  suggested.  No  "permanent  provision  upon 
the  subject"  had  been  made  by  Congress,  and  conse- 
quently all  the  perplexing  questions  suggested  by  the 
joint  committee  came  iip  for  decision  at  that  time,  with- 
out any  prior  law  for  their  determination.  The  debates 
evoked  one  very  telling  query.  One  Senator  asked 
Grundy,  the  chairman  of  the  Senate  committee,  what 
course  would  have  been  pursued  had  the  vote  of  Michi- 
gan been  essential  in  the  count,  to  which  Grundy  replied 
that  he  could  not  "answer  a  question  which  the  wisest 
of  their  predecessors  had  purposely  left  undetermined. 
What  might  be  done  under  the  circumstances  adverted 
to,  should  they  ever  occur,  the  wisdom  of  the  day  must 
decide."  ^ 

'  For  the  first  and  the  only  time  in  the  history  of  the  nation  the  Senate 
was  on  this  occasion  called  upon  to  perform  its  constitutional  duty  of  elect. 
ing  the  Vice-President.  The  electoral  count  had  showed  that  Richard  M. 
Johnson,  of  Kentucky,  and  Francis  Granger,  of  New  York,  had  each  147 
electoral  votes,  including  those  of  Michigan,  or  144  without  them,  and 
either  count  was  a  majority.  The  Senate  subsequently  chose  Johnson 
Vice-President. 


Counting — 1793  Until  1856  51 

The  question  of  the  legality  of  the  action  of  State 
electors  was  presented  in  a  different  form  in  1857,  when 
discussion  arose  over  the  vote  of  Wisconsin.  Congress, 
by  the  Act  of  March  i,  1792,  had  provided  that  the 
electors  of  the  several  States  should  meet  for  the  purpose 
of  balloting  for  President  on  the  first  Wednesday  of  De- 
cember. The  Constitution  required  that  this  day  should 
be  uniform  throughout  the  United  States  to  "close  the 
opportunity  as  much  as  possible  against  negotiation,  in- 
trigue, and  corruption."  The  Wisconsin  electors  were 
unable  to  reach  the  State  capital  on  the  day  fixed  by  law 
because  of  a  violent  snow-storm,  but  they  actually  as- 
sembled and  voted  on  the  next  succeeding  day.  Their 
certifieate  was  transmitted  to  the  president  of  the  Senate 
with  an  explanation  of  the  circumstances  that  had  pre- 
vented their  meeting  on  the  prescribed  day.  The  usual 
joint  committee  was  selected  "to  ascertain  and  report  a 
mode  of  examining  the  votes  for  President  and  Vice- 
President  of  the  United  States,  and  of  notifying  the  per- 
sons elected  of  their  election."  In  the  joint  meeting  of 
the  two  Houses  of  Congress,  on  February  11,  1857,  when 
the  vote  from  Wisconsin  was  reached,  the  tellers  reported 
that  the  certificate  of  the  electors  of  that  State  showed 
that  the  electoral  vote  of  that  State  had  not  been  cast 
on  the  day  prescribed  by  law.  Objection  was  made  by 
Letcher,  of  Virginia,  to  the  reception  of  the  vote,  but  the 
presiding  officer.  Senator  Mason,  of  Virginia,  ruled  that 
debate  was  out  of  order  while  the  tellers  were  occupied 
with  the  count.  When  the  tellers'  statement  had  been 
completed,  it  showed  that  the  five  votes  of  Wisconsin 
cast  for  Fremont  and  Dayton  on  December  4th  were  in- 
cluded; and  Jones,  of  Tennessee,  one  of  the  tellers,  in 
announcing  the  report  to  the  joint  meeting,  declared  that 
the  tellers  found  all  the  votes  regular  and  cast  on  the  day 
prescribed  by  law,  except  in  the  case  of  the  votes  cast  by 
the  electors  of  the  State  of  Wisconsin,  which  were  cast 


52  The  Electoral  System 

on  December  4th,  instead  of  December  3d,  as  prescribed 
by  law.  The  report  then  proceeded  as  follows  :  ''All  the 
returns  show  that  James  Buchanan,  of  the  State  of  Penn- 
sylvania, received  174  votes  for  President  of  the  United 
States;  that  John  C.  Fremont,  of  the  State  of  California, 
received — including  the  votes  of  Wisconsin — 114  votes  for 
President  of  the  United  States. "  Letcher  again  inquired 
whether  it  would  now  be  in  order  to  move  to  exclude  the 
vote  of  Wisconsin  from  the  count,  but  the  president 
again  ruled  debate  not  in  order.  This  impelled  Senator 
Crittenden,  of  Kentucky,  to  ask  whether  the  chair  de- 
cided "that  Congress,  in  no  form,  has  power  to  decide 
upon  the  validity  or  invalidity  of  a  vote."  The  presid- 
ing officer  replied  that  he  had  made  no  such  ruling,  but 
that,  in  his  opinion,  under  the  law  and  the  concurrent 
order  of  the  two  Houses, 

'*  nothing  can  be  done  here,  but  to  count  the  votes  by  tellers, 
and  to  declare  the  vote  thus  counted  to  the  Senate  and  the 
House  of  Representatives  sitting  in  this  chamber.  What 
further  action  may  be  taken,  if  any  further  action  should  be 
taken,  will  devolve  upon  the  properly  constituted  authorities 
of  the  country — the  Senate,  or  the  House  of  Representatives, 
as  the  case  may  be." 

He  then  proceeded  to  recapitulate  the  votes  as  announced 
to  the  joint  committee,  stating  that  the  tellers  reported 
the  whole  number  of  electors  to  be  296,  that,  according 
to  the  vote,  "as  delivered  by  the  tellers,"  Buchanan  and 
Breckenridge  had  each  174  votes  and  Fremont  and  Dayton 
each  114,  and  thereupon  declared  Buchanan  and  Brecken- 
ridge President  and  Vice-President.  This  provoked  ob- 
jections from  political  friends  and  foes  in  both  Houses, 
Senators  Toombs,  Butler,  and  Crittenden  being  especially 
earnest  in  their  protest  that  the  effect  of  this  declaration 
was  to  include  the  Wisconsin  vote.  A  spirited  debate 
began,  but  Senator  Cass  thereupon  objecting  that  debate 


Counting — 1793  Until  1857  53 

was  not  permissible  in  a  joint  meeting,  the  presiding 
officer,  after  further  discussion,  so  ruled,  the  Senate  re- 
turned to  its  own  hall,  and  the  certificate  of  the  tellers 
was  never  read  to  the  joint  session.  It  has  been  often 
said  that  the  president  of  the  Senate  on  this  occasion 
counted  the  votes  of  Wisconsin,  but  the  record  shows 
that  he  disclaimed  authority  to  count,  and  that  all  he  did 
was  to  announce  what  votes  had  been  received  by  the 
tellers,  without  question  of  their  legality,  and  to  declare 
the  result  to  the  two  Houses.'  As  Wisconsin's  vote  was 
of  no  moment  as  affecting  the  election,  this  clever  evasion 
met  with  ultimate  acquiescence,  although  a  violent  debate 
arose  in  each  House  when  the  joint  session  was  dissolved. 
A  number  of  Republicans,  prominent  among  whom 
were  Hale,  in  the  Senate,  and  Washburn,  of  Maine,  in 
the  House,  insisted  that  the  vote  of  Wisconsin  ought  to 
be  counted.  Seward  expressed  his  doubt  but  sustained 
the  action  of  the  chair.  Hale  argued  that  as  the  people 
of  Wisconsin  had  done  all  in  their  power  to  express  their 
voice  in  the  presidential  election,  the  penalty  of  disfran- 
chisement should  not  be  visited  upon  them,  since  it  was 
through  unavoidable  accident  that  the  electors  had  failed 
to  arrive  at  the  State  capital  on  December  3d.  Critten- 
den and  Thompson,  of  Kentucky,  affirmed  the  Consti- 
tution to  be  inexorable  in  its  requirement  that  all  the 
votes  must  be  given  on  a  particular  day.  To  the  majority 
of  the  Senate  the  more  important  questions  were  whether 

'  "  In  reference  to  one  State,  the  State  of  Wisconsin,  the  tellers  have  re- 
ported that  the  vote  of  that  State  was  cast  on  a  day  different  from  that  pre- 
scribed by  law.  The  presiding  officer  is  not  aware  that  what  effect,  if  any, 
such  a  difference  would  have  on  the  vote  of  that  State  can  be  decided  by 
him.  Nor  is  it  his  duty  to  decide  upon  whom  devolves  the  duty  of  deter- 
mining what  the  effect  may  be.  The  presiding  officer  is  further  required 
[under  the  concurrent  rules  of  the  two  Houses]  to  declare  the  whole  vote  as 
given.  That  duty  he  has  discharged.  He  is  further  required  to  declare 
who  has  received  a  majority  of  the  whole  vote  from  the  list  delivered  to 
him  by  the  tellers,  and  to  declare  such  person  elected  President  or  Vice- 
President  as  the  case  may  be." 


54  The  Electoral  System 

the  President  had  in  fact  counted  Wisconsin's  vote,  which 
he  maintained  he  had  not  (and  in  this,  numerous  Senators 
supported  him),  and,  especially,  where  the  power  to  count 
resided.  Upon  this  last  question  the  widest  possible 
differences  of  opinion  were  developed  in  the  two  Houses. 
It  was  argued  that  the  president  of  the  Senate  was  to  de- 
termine what  votes  should  be  counted  or  rejected,  and 
that  it  was  his  duty,  and  his  duty  alone,  to  ascertain 
whether  they  were  valid  votes.  To  others,  such  a  view 
involved  a  usurpation  by  that  officer  of  the  powers  of 
Congress,  and  would  make  the  president  of  the  Senate 
an  authority  greater  than  Congress  itself.  Some  claimed 
that  as  the  House  alone  was  to  elect,  in  case  no  candidate 
had  a  majority  of  electoral  votes,  that  body  was  the  sole 
tribunal  to  pass  upon  Wisconsin's  vote,  while  others 
argued  that  the  two  Houses  sitting  separately  were  the 
constitutional  arbiters  of  all  such  questions.  The  theory 
first  suggested  in  the  debates  of  1800  was  again  presented, 
that  the  Houses  in  joint  session  formed  one  body,  in 
which  a  vote  should  be  had  per  capita.  Senator  Pugh, 
of  Ohio,  after  arguing  that  at  no  stage  of  the  joint  pro- 
ceedings had  dissent  from  the  reception  of  the  vote  been 
held  to  be  in  order,  said : 

"  I  believe  the  two  Houses  assembled  together  were  a  board 
of  canvassers  organized  by  the  Constitution  for  the  express 
purpose  of  counting  these  votes.  The  whole  number  of  Sen- 
ators and  Representatives  taken  together  is  equal  to  the  whole 
number  of  electors  in  all  the  colleges.  .  .  .  All  the  States, 
if  they  had  voted  there  yesterday  through  their  Senators  and 
Representatives,  would  have  exercised  the  precise  power  which 
they  exercised  in  the  election  of  President  "  ; 

and  have  cast  their  votes  per  capita^  as  the  Representa- 
tives and  Senators  from  each  State  had  the  same  number 
of  votes  as  the  State  in  the  electoral  college.  Mallory, 
of  Kentucky,  answered  that  this  was  introducing  a  third 


Counting — 1793  Until  1857  55 

mode  of  electing  the  President,  unknown  to  the  Consti- 
tution. The  view  was  strongly  advocated  that,  as  the 
law  then  stood  there  existed  no  competent  authority 
to  decide  upon  the  validity  or  invalidity  of  the  votes. 
Charles  E.  Stuart,  of  Michigan,  and  Benjamin,  of  Louis- 
iana, urged  the  Senate  to  pass  a  general  act  providing 
that  votes  not  cast  on  the  day  required  by  law  should 
not  be  counted.  Stuart,  maintaining  that  the  presiding 
officer  had  simply  fulfilled  his  duty  in  the  announcement 
he  had  made  as  to  the  vote,  thus  put  the  dilemma : 

**  Either  the  presiding  officer  is  bound  to  count  all  the  votes 
that  are  certified  to  him  by  the  State  authorities,  or  else  the 
presiding  officer,  under  the  present  law,  and  he  alone,  has  the 
right  to  decide  whether  he  will  count  or  reject  them.  . 
In  either  event,  it  will  be  conceded,  I  think,  by  every  Senator, 
that  it  is  a  dangerous  power.  It  is  dangerous  to  leave  it  to 
the  certifying  officers  or  the  electors  themselves,  who  make  the 
certificates  on  the  part  of  the  States;  it  is  dangerous  to  leave 
it  in  the  hands  of  the  presiding  officer  of  the  Senate ;  but  irt 
one  or  the  other  it  rests;  and  I  submit  that  to  undertake  to 
say  that  it  rests  in  the  two  Houses  assembled  together  en  masse 
to  decide  such  a  question  would  fall  but  little  short  of  revo- 
lution." 

The  vital  point  was  touched  by  Stuart  when  he  declared 
that  it  was  "imperative  on  Congress  by  legislation  to  de- 
termine definitely  what  should  be  done  in  such  a  case," 
and  in  this  view  Hale,  Collamer,  Seward,  and  others 
joined.  Thompson,  of  Kentucky,  asserted  that  the 
Senate  was  the  counting  power,  "and  the  House  of 
Representatives  are  admitted  to  be  present  at  the  count 
to  prevent  a  combination,  a  clandestine  operation,  a 
secret  measure,  a  coup  d'etat  ",•  and  he  added  later,  that 
the  House  could  "fall  back  upon  their  parliamentary  or 
revolutionary  rights,  whatever  they  were,  if  we  did 
wrong."     In  the  House,   Humphrey  Marshall,  of  Ken- 


5^  The  Electoral  System 

tucky,  arguing  that  the  president  of  the  Senate  had 
usurped  the  right  to  count  the  votes,  denied  that  a  vote 
could  be  taken  per  capita ^  and  insisted  that  until  the 
House  of  Representatives  agreed  to  the  vote  offered  it 
was  not  constitutionally  counted,  nor  could  the  president 
of  the  Senate  declare  a  result  to  which  the  House  had 
not  agreed.  Washburn  thought  there  was  a  casus  omissus 
and  that 

"it  is  of  the  highest  importance  that  there  should  be  some 
legislation  on  this  subject.  All  that  we  can  now  do  is  to 
acquiesce  in  the  decision  that  has  been  made,  and  to  set  our- 
selves to  work  immediately  for  the  passage  of  a  law  which  will 
prevent  any  trouble  or  difficulty  of  this  kind  in  the  future.  I 
received  a  letter  but  a  few  days  ago  from  a  gentleman  eminent 
for  his  wisdom  and  ability,  who  stated  therein  that  Chancellor 
Kent,  of  New  York,  had  told  him  that  here  was  clearly  a  casus 
omissus  J  that  there  was  no  power  either  in  the  House  or  Senate 
or  in  a  joint  convention,  to  interfere  and  participate  authorita- 
tively in  counting  and  declaring  the  votes  and  deciding  upon 
their  validity ;  and  he  said  that  the  Chancellor  added  that  he 
feared  the  time  might  come  when  the  country  would  be  shaken 
to  its  centre  on  this  point.  We  cannot,"  he  eloquently  con- 
cluded, "over-estimate  the  importance  of  such  a  law  [a  general 
law].  Let  the  election  of  President  depend  upon  the  vote  of 
a  single  State,  and  let  that  vote  be  contested  in  earnest,  what 
weight  or  power  would  the  decision  of  one  man  have  with  the 
country,  or  would  that  of  Congress  possess,  acting  arbitrarily, 
without  law,  without  rules  and  orders  of  proceeding,  and  with 
a  view  to  making  the  President,  rather  than  ascertaining  who 
had  been  duly  elected  by  the  people.  Suppose  the  will  of  the 
people  defeated  by  a  partisan  president  of  the  Senate,  or  a 
partisan  majority  of  Congress,  .  .  .  what  shall  save  us 
from  revolution?" 

The  debate  ran  through  two  days  in  each  House,  but 
was  unproductive  of  any  result.     It  was  closed  by  a  reso- 


Counting — 1793  Until  1857  57 

lution,  emanating  from  the  joint  committee,  of  notifica- 
tion to  the  successful  candidates  of  their  election. 

The  antagonisms  of  opinion  were  hopelessly  irreconcil- 
able. While  the  wiser  and  cooler  heads  saw  the  necessity 
of  general  legislation  to  settle  all  questions  arising  upon 
the  count,  such  legislation  was  not  then  possible.  The 
count  had  not  yet  vitally  affected  the  election,  and  each 
Congress,  realizing  the  difficulties  of  framing  a  general 
enactment,  was  glad  to  postpone  the  task.  Thirty  years 
after  the  controversy  over  the  Wisconsin  vote  Congress 
first  passed  such  a  law,  the  merit  of  which  yet  remains  to 
be  tested.  But  before  that  law  could  be  enacted,  an 
occasion  arose  when  alternative  counting  was  out  of  the 
question,  and  the  nation,  in  the  peril  so  clearly  foreseen 
by  Chancellor  Kent,  had  to  devise  an  emergency  plan  to 
escape  anarchy. 


CHAPTER   III 

THREE   THEORIES   OF  COUNTING — THE  BILL   OF    180O 

BEFORE  reviewing  the  difficulties  which  arose  in  con- 
nection with  the  electoral  count  after  1857,  it  may 
be  well  to  rehearse  concisely  the  course  of  development 
from  1789  to  1857.  Three  theories  or  interpretations  of 
the  clause  of  the  Constitution  in  regard  to  the  opening 
of  the  certificates  and  counting  of  the  votes  have  held 
sway  at  different  times,  says  McKnight  in  his  treatise 
upon  The  Electoral  System  of  the  United  States  : 

"  The  first  is  that  the  president  of  the  Senate  shall  count 
the  votes ;  the  second,  that  there  is  a  casus  omissus  in  that  re- 
gard; and  the  third  is,  that  the  two  Houses  present  shall 
count.  .  .  .  From  the  time  of  the  first  Congress  in  1789 
to  the  year  182 1,  history  shows  that  the  unquestioned  custom 
was  for  the  president  of  the  Senate  to  '  declare  '  the  votes 
officially,  while  counting  was,  what  the  language  of  the  law 
would  seem  to  convey  clearly  enough,  simple  enumeration." 

During  this  period,  McKnight  remarks,  the  framers  of 
the  Constitution  occupied  the  seats  of  honor  in  the  na- 
tion, and  particularly  during  the  first  fifteen  years  were 
conspicuous  in  the  halls  of  Congress.  **From  1821  to 
1 861,  it  was  generally  held  that  a  casus  omissus  existed 
in  the  Constitution,  and  that  no  one  was  empowered  to 
'count';  whilst  counting  was  used  in  the  broader  and 
unwarranted  sense  of  'canvassing.'  "  But  in  the  early 
practice  no  difficulties  arose  to  make  counting  more  than 

58 


Three  Theories  of  Counting  59 

simple  enumeration;  whereas,  in  1821,  1837,  and  1857, 
questions  touching  the  validity  of  the  certificates  trans- 
mitted to  the  Senate  required  a  determination  by  some 
competent  authority,  in  accordance  with  some  clearly 
applicable  law,  as  well  as  a  simple  count.  As  was  re- 
peatedly asked  in  debates,  when  the  Constitution  says 
the  votes  shall  be  counted,  what  votes  are  intended? 
While  some  laid  stress  on  the  word  "count,"  others  put 
the  emphasis  on  the  word  "votes."  If  votes  claimed  to 
be  irregular  or  invalid  were  opened,  their  validity  or  in- 
validity had  to  be  settled  before  counting  could  properly 
take  place.  The  third  theory,  which  according  to 
McKnight,  became  operative  in  1861,  is  that  Congress 
possesses  the  right  to  count,  i,e.y  to  enumerate  as  "an 
affirmative  act,"  and  "that  the  votes  are,  of  course,  the 
legal  votes,  which  thus  devolves  on  Congress  the  power 
also  to  determine  their  legality."  McKnight's  view  is 
that  this  assumption  by  Congress  is  an  unwarranted 
usurpation.  One  of  the  clearest  and  most  sagacious  of 
our  historians,  the  late  Alexander  Johnston,  says : 


"  In  this  first  period,  there  is  no  instance  of  a  declaration 
of  the  electoral  canvass  by  any  other  power  than  the  president 
of  the  Senate,  and  the  only  open  attempt  to  pervert  the  system 
was  the  Federalist  bill  of  1800.  As  the  certificates  which  the 
president  of  the  Senate,  in  the  absence  of  an  authenticating 
law,  decided  to  be  valid  were  opened,  he  passed  them  to  the 
tellers  appointed  by  the  two  Houses,  who  *  counted  *  them  in 
the  proper  meaning  of  the  word.  The  certificates  of  election 
which  were  made  out  by  order  of  Congress  from  1797  until  182 1, 
all  contained  the  distinct  affirmation  that  *  the  president  of  the 
Senate  did,  in  the  presence  of  the  said  Senate  and  House  of 
Representatives,  open  all  the  certificates  and  count  all  the  votes 
of  the  electors." 

But  no  case  of  double  or  contested  returns  occurred.     As 


6o  The  Electoral  System 

exhibiting  the  growth  of  the  claim  of  congressional  power 
Johnston  says  that 

"an  amendment  to  the  Constitution  was  introduced  in  Con- 
gress in  January  and  February,  1798,  for  the  purpose,  among 
others,  of  giving  Congress  the  very  power  of  decision  upon 
'contests  '  which  it  now  exercises  without  such  an  amendment, 
but  this  was  not  adopted,  nor  was  it  inserted  in  the  Twelfth 
Amendment." 

The  progressive  changes  of  language  in  the  messages 
from  the  two  Houses  announcing  their  readiness  to  attend 
the  count  are,  he  says,  worthy  of  notice. 

"They  are  as  follows:  (1793-1805)  that  they  are  ready  to 
meet  one  another  '  to  attend  at  the  opening  and  counting  of 
the  votes';  (1809  and  1813)  '  to  attend  in  the  opening  and 
counting  of  the  votes  ';  (1817)  *  to proceedin  opening  the  cer- 
tificates and  counting  the  votes  *  or  '  to  proceed  to  open  and 
count  the  votes,'  the  former  being  that  of  the  Senate  and  the 
latter  that  of  the  House.     These  changes  are  landmarks." 

Johnston  argues  cogently  that  the  views  of  Pinckney  in 
1800,  and  of  John  Randolph  in  1821,  were  sound,  and 
that  Congress  doubly  violated  the  Constitution  in  1821, 
**  first  by  usurping  control  of  the  canvass  and  second  by 
refusing  to  fulfil  the  charge  that  the  'votes  shall  then  be 
counted,'  "  for  the  count  of  the  votes  was  evaded  and  an 
"alternative  count"  substituted.  And  the  evasion  was 
repeated  in  1837  and  again  in  1857.  It  was  predicted 
again  and  again  in  the  course  of  debates  that  some  ade- 
quate general  legislation  was  imperative  upon  Congress, 
because  the  occasion  might  arise  (as  it  did  in  1877)  when 
the  acceptance  or  rejection  of  a  contested  vote  would 
determine  the  election.  From  the  early  period  it  will  be 
found  also  that  there  was  a  gradual  assumption  of  au- 
thority by  the  tellers,  for  whose  appointment  there  is  no 


Three  Theories  of  Counting  6i 

warrant  in  the  Constitution,  who  were  originally  merely 
clerical  officers  appointed  to  facilitate  the  work  of  the 
president  of  the  Senate  and  examine  and  add  up  the 
votes.  The  contrary  theory  that  the  power  to  count 
belongs  to  the  two  Houses  of  Congress  in  the  joint  meet- 
ing provided  for  in  the  Constitution  has  been  forcibly 
presented  in  the  following  terms : 


"  The  exclusive  jurisdiction  of  the  two  Houses  to  count  the 
electoral  votes  by  their  own  servants  and  under  such  instruc- 
tions as  they  may  deem  proper  to  give  on  occasions  arising 
during  the  counting,  or  by  previous  concurrent  orders,  or  by 
standing  joint  rules,  or  by  the  formal  enactments  of  law,  has 
been  asserted  from  the  beginning  of  the  government;  that 
exclusive  jurisdiction  has  been  exercised  at  every  presidential 
election  from  1793,  when  a  regular  procedure  was  first  estab- 
lished, until  and  including  the  last  count  of  electoral  votes  in 
1873.  It  was  exercised  by  concurrent  orders  of  the  two 
Houses  from  1793  to  1865,  and  by  a  standing  joint  rule  in 
1865,  1869,  and  1873.  Every  counting  at  these  twenty-one 
successive  presidential  elections  has  been  conducted  under  and 
governed  by  the  regulations  thus  imposed.  These  regulations 
have  prescribed  every  step  in  the  procedure;  have  defined  and 
regulated  the  powers  of  every  person  who  has  participated  in 
any  ministerial  service  in  the  transaction.  They  have  con- 
trolled every  act  of  the  president  of  the  Senate  in  respect  to 
the  counting,  except  the  single  act  of  opening  the  packages 
of  the  electoral  votes  transmitted  to  him  by  the  colleges,  which 
is  a  special  duty  imposed  on  him  by  the  Constitution.  During 
all  this  long  period,  the  exclusive  jurisdiction  of  the  two 
Houses,  exercised  upon  numerous  successive  occasions,  has 
never,  in  a  single  instance,  been  the  subject  of  denial,  dispute, 
or  question. 

*'  The  president  of  the  Senate,  although  he  has  regularly,  in 
person  or  by  some  substitute  appointed  by  the  Senate,  per- 
formed the  constitutional  duty  of  opening  the  electoral  votes, 
has  never,  on  any  occasion,  or  in  any  single  instance,  attempted 


62  The  Electoral  System 

to  go  a  step  beyond  that  narrow  and  limited  function.  .  .  . 
The  two  Houses  have  also  asserted  the  right  to  prescribe  a 
permanent  method  of  counting  the  electoral  votes."  ^ 

These  arguments  shovv^  the  opposing  attitude  of  jurists 
and  constitutional  lawyers,  both  in  and  out  of  Congress, 
from  the  inception  of  the  Government  almost  to  the 
present  day. 

An  act  of  Congress  declaring  what  constitutes  a  State 
and  when  a  Territory  has  ripened  into  Statehood  would 
have  prevented  all  controversy  over  Missouri's  vote  and 
so  also  a  law  prescribing  whether  or  not  the  Constitution 
is  mandatory  in  requiring  all  electors  to  vote  on  the 
same  day  would  have  rendered  the  turmoil  over  Wiscon- 
sin's vote  impossible.  The  simple  act  of  counting  in 
accordance  with  such  a  previously  enacted  law  would 
then  have  been  nothing  more  than  a  ceremony  even  had 
it  been  performed  by  the  president  of  the  Senate.  If  it 
would  have  been  a  usurpation  for  the  president  of  the 
Senate  to  decide,  in  the  absence  of  law,  whether  Missouri 
was  entitled  to  vote  or  whether  the  Wisconsin  electors 
had  cast  valid  ballots,  it  would  have  been  equally  a  usur- 
pation for  Congress  in  the  joint  meeting  of  the  Houses 
to  undertake  to  answer  these  questions.  The  confusion 
in  the  minds  of  statesmen  arose  from  the  absence  of  a 
general  law,  but  no  such  law  was  possible  until  a  majority 
in  Congress  agreed  as  to  the  true  constitutional  deposi- 
tary of  the  counting  power  and  as  to  the  constitutional 
subjects  of  legislation. 

The  bill  of  1800,  the  title  of  which  was  "An  act  pre- 
scribing the  mode  of  deciding  disputed  elections  of 
President  and  Vice-President  "  was  in  reality  the  germ 
from  which  eventually  sprang  the  twenty-second  joint 
rule,  the  Morton  bill  of  1873  to  govern  the  electoral 
count,  the  Electoral  Commission  bill  of  1877,  and  the  act 

^  The  Presidential  Counts,  by  D.  Appleton  &  Co.,  xli. 


The  Bill  of  1800  63 

of  February,  1887.  The  bill  originated  in  the  Senate, 
which  at  that  time  was  under  Federalist  control,  and  it 
was  designed  to  circumvent  the  ambition  of  the  presiding 
officer  of  that  body.  Yet  its  strongest  and  most  eloquent 
opponent  was  a  member  of  the  Federalist  party.  The 
bill  was  ultimately  defeated,  because  the  amendments 
added  in  the  House  of  Representatives  so  completely 
revolutionized  and  obliterated  some  of  its  radical  features, 
as  to  frustrate  the  purpose  for  which  it  was  drawn.  The 
antagonism  between  the  two  Houses  reveals  the  struggle 
for  mastery  of  the  electoral  count.  The  Senate  plan 
would  have  vested  the  final  control  in  the  Senate. 
Whether  the  motive  was  sinister  or  not,  such  would  have 
been  the  result.  The  House  struck  out  from  the  bill  all 
those  features  which  gave  the  Senate  control,  and  the 
consequence  was  that  the  bill  failed  of  passage.  The  de- 
bate is  unfortunately  very  scantily  reported  in  the  Aimals 
of  Congress.  The  Republicans  generally  were  of  the 
opinion  that  the  bill  was  aimed  directly  at  the  Pennsyl- 
vania vote,  which,  it  was  assumed,  would  be  cast  by  the 
Legislature  of  that  State.  Duane  charged  in  the  Aurora 
that  its  purpose  was  to  enable  the  Federal  majority  in 
Congress  through  a  committee  to  reject  that  vote  as 
irregular.  The  importance  of  Pennsylvania's  vote  was 
recognized  by  both  parties.  "If,"  wrote  Jefferson  to 
Madison  on  March  8th,  "Pennsylvania  votes,  then  either 
Jersey  or  New  York  giving  a  Republican  vote,  decides 
the  election.  If  Pennsylvania  does  not  vote,  then  New 
York  determines  the  election." 

On  January  23,  1800,  James  Ross,  of  Pennsylvania, 
whom  the  Federalists  of  that  State  had  unsuccessfully 
supported  for  governor  the  preceding  year,  offered  a 
resolution  in  the  Senate  that  a  committee  be  appointed 
to  consider  whether  any  and  what  provisions  ought  to 
be  made  by  law  for  deciding  disputed  elections  of  Presi- 
dent and  Vice-President  of  the  United  States;  and  for 


64  The  Electoral  System 

determining  the  legality  or  illegality  of  the  votes  given  for 
those  officers  in  the  different  States.  It  is  evident  that 
the  votes  referred  to  in  the  resolution  were  not  popular, 
but  electoral  votes;  in  a  majority  of  the  States  electors 
were  chosen  by  the  Legislature.  The  resolution  was 
passed  after  debate.  Brown,  of  Kentucky,  thought  that 
Congress  had  no  right  to  legislate  upon  the  subject.  If 
the  provisions  of  the  Constitution  were  incomplete  or  de- 
fective, the  remedy  lay  in  recommending  an  amendment 
to  that  instrument.  Ross  replied  that  the  Constitution 
made  no  provision  upon  the  subject,  but  merely  directed 
that  after  the  reception  of  the  votes  the  certificates  should 
be  opened  and  the  votes  counted.  Suppose,  said  he, 
persons  should  claim  to  be  electors  who  had  never  been 
properly  appointed.  Should  their  vote  be  received? 
Suppose  they  should  vote  for  a  person  to  be  President 
who  had  not  the  age  required  by  the  Constitution,  or 
who  had  not  been  long  enough  a  citizen  of  the  United 
States,  or  for  two  persons  who  were  both  citizens  of  the 
same  State.  What  would  happen  in  such  a  case?  He 
therefore  considered  it  their  duty  to  make  provision  for 
the  contingency,  and  he  believed  this  could  be  done  by 
an  act  of  Congress. 

Samuel  Dexter,  of  Massachusetts,  one  of  the  foremost 
lawyers  of  his  age,  supporting  Ross,  argued  that  the  Con- 
stitution gave  Congress  the  power  to  enact  the  necessary 
legislation.  The  power  was  contained  in  the  eighth  sec- 
tion of  the  first  article,  and  is  this:  "To  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  department  or  officer  thereof." 
Samuel  Livermore,  of  New  Hampshire,  concurring  with 
Dexter,  declared  he  never  felt  less  doubt  on  any  subject 
than  upon  this  of  the  power  of  Congress.  But  Abraham 
Baldwin,  of  Georgia,  who  was  one  of  the  four  members 


The  Bill  of  1800  65 

of  the  Senate  of  1800  that  had  been  delegates  to  the  con- 
stitutional convention  of  1787,  found  nothing  to  criticise 
in  the  practice  and  proceedings  of  the  electoral  college 
or  in  the  count  of  the  votes.  When  Senators  and  Repre- 
sentatives met  together  in  joint  session,  their  only  office 
was  "to  judge  of  the  authentication  of  the  act  of  the 
electors,  and  then  to  proceed  and  count  the  vote  as 
directed."  If  a  body  of  the  electors  of  all  the  States  had 
been  directed  by  the  Constitution  to  assemble  in  one 
place,  he  took  it  for  granted  that  none  of  the  questions 
underlying  the  legislation  would  have  occurred.  Every 
one  would  have  acknowledged  that  all  these  were  to  be 
settled  in  that  assembly.  That  it  had  been  "deemed 
more  safe  by  the  Constitution  to  form  them  into  different 
electoral  colleges,  to  be  assembled  in  the  several  States, 
does  not  at  all  alter  the  nature  or  distinctness  of  their 
powers  or  subject  them  any  more  to  the  control  of  the 
other  departments  of  the  Government."  He  did  not, 
however,  content  himself  with  eulogy  of  the  existing 
methods,  but  observed  further  that,  if  such  radical  and 
important  changes  were  to  be  made  as  the  resolution  con- 
templated, they  must  be  made  by  proposing  an  amend- 
ment to  the  Constitution,  for  they  could  not  be  made  by 
law  without  violating  the  Constitution.  His  argument  is 
of  profound  interest,  not  only  as  coming  from  a  mem- 
ber of  the  convention  of  1787,  but  as  containing  the  sub- 
stance of  the  views  of  those  who  have  opposed  legislation 
on  the  ground  that  it  is  inadequate  and  without  warrant 
in  the  organic  law.  In  answer  to  Dexter,  who  had  in- 
voked the  clause  at  the  close  of  the  eighth  section  of 
Article  I.  of  the  Constitution,  Baldwin  denied  that  tbe 
section  "could  be  extended  to  this  case."  That  sec-' 
tion,  he  continued, 

"  speaks  of  the  use  of  the  powers  vested  by  the  Constitution 
— this  resolution  relates  to  the  formation  of  a  competent  and 


66  The  Electoral  System 

essential  part  of  the  government  itself;  that  speaks  of  the 
movements  of  the  government  after  it  is  organized ;  this  relates 
to  the  organization  of  the  executive  branch,  and  is  therefore 
clearly  a  constitutional  work,  and  to  be  done,  if  at  all,  in  the 
manner  pointed  out  by  the  Constitution,  by  proposing  an 
article  of  amendment  to  the  Constitution  on  that  subject." 

The  constitutionality  of  the  bill  was  assailed  with  great 
ability  by  Charles  C.  Pinckney,  of  South  Carolina,  who 
had  been  a  very  active  member  of  the  convention  of 
1787.  "The  value  of  Mr.  Pinckney 's  defence  of  the  Con- 
stitution," says  McKnight,  "is  enhanced  an  hundredfold 
by  the  fact  that  he,  a  Federalist  and  a  candidate  for 
President  on  that  ticket  in  the  fall  of  this  same  year,  was 
the  unrelenting  opponent  of  a  political  measure  offered 
by  his  own  party."  Pinckney 's  speech,  according  to 
the  Philadelphia  Aurora^  was  generally  allowed  to  have 
been  equal  in  eloquence  and  strength  of  reasoning  to 
anything  ever  delivered  in  the  halls  of  Congress.  He 
spoke  unquestionably  with  profound  conviction.  The 
Constitution,  he  truly  maintained,  had  left  the  exclusive 
control  of  the  election  with  the  States.  In  case  the 
State  Legislatures  should  neglect  or  refuse  to  elect,  there 
was  no  power  to  compel  them,  nor  to  force  them  to  legis- 
late as  to  the  manner  in  which  electors  should  be  chosen. 
There  is  not,  he  said, 

*'  a  single  word  in  the  Constitution  which  can,  by  the  most  tor- 
tured construction,  be  extended  to  give  Congress,  or  any  branch 
or  part  of  our  Federal  Government,  a  right  to  make  or  alter 
the  State  Legislatures'  directions.  I  well  remember,"  he  con- 
tinued, "  it  was  the  object  [of  the  Constitutional  Convention] 
to  give  to  Congress  no  interference  in  or  control  over  the  elec- 
tion of  President.  ...  It  never  was  intended,  nor  could 
it  have  been  safe,  in  the  Constitution,  to  have  given  to  Con- 
gress thus  assembled  in  convention  the  right  to  object  to  any 
votes,  or  even  to  question  whether  they  were  constitutionally  or 
properly  given." 


The  Bill  of  1800  67 

The  few  provisions  of  the  Constitution  as  to  the  qualifica- 
tions of  electors  or  eligibility  of  candidates  would,  he  felt 
convinced,  be  faithfully  observed  by  the  States  in  the 
performance  of  their  function  of  appointing  electors. 
The  point  that  if  two  different  sets  of  electors  should 
insist  that  they  were  constitutionally  elected,  or  that  if 
double  returns  should  be  transmitted,  one  certified  by 
the  governor  of  the  State,  the  other  not,  there  was  no 
power,  unless  the  States  legislated  affirmatively  or  Con- 
gress passed  some  appropriate  enactment,  to  remedy  the 
trouble  and  decide  between  the  conflicting  claims,  Pinck- 
ney  did  not  meet,  unless  by  the  expression  of  his  hope 
that  the  States,  in  the  exercise  of  their  prerogatives, 
would  do  their  duty.     It 

"  would  be  safer  and  less  injurious  to  the  interests  of  the  peo- 
ple that  these  few  irregular  votes,  if  transmitted  and  certified 
by  an  executive,  shall  be  received  and  counted,  than  that  a 
new  and  unknown  power  like  this  should  be  created,  under 
whose  control  not  a  few,  but  every  vote  that  is  given,  must  be 
reviewed,  and  received  or  rejected  as  they  decree.  If  the 
bill  is  not  passed,  we  are  to  depend,  as  we  have  hitherto  done, 
on  the  attachment  of  the  States,  and  the  good  sense  and 
integrity  of  their  executives." 

The  law  of  1792,  in  his  judgment,  went  to  the  verge  of 
the  power  of  Congress.  His  criticisms  of  that  feature  of 
the  Senate  bill  which  provided  for  the  taking  of  testimony 
were  acute  and  just.  It  was  also  a  great  mistake  to  pro- 
pose that  the  judiciary,  an  altogether  separate  branch  of 
the  Government,  should  have  anything  to  do  with  the 
electoral  count,  and  the  remedy  by  taking  testimony 
would  have  been  found  utterly  impracticable. 

*Mt  is  very  important,"  said  Pinckney,  *'  in  deciding  on  the 
bill  before  you,  to  peruse  this  act  of  [1792]  with  great  at- 
tention;  to  recollect  by  whom,   and  when,  and  under  what 


68  The  Electoral  System 

circumstances,  it  was  made.  This  law  was  passed  in  1792,  when 
a  number  of  able  and  well-informed  men,  who  have  been 
since  appointed  to  some  of  your  most  respectable  situations 
at  home  and  abroad,  and  many  who  have  voluntarily  retired 
with  deserved  and  well-earned  honor  to  private  life,  filled  the 
seats  of  both  Houses  of  Congress;  when  the  executive  au- 
thority was  held  by  General  Washington,  for  whom  your 
whole  nation  at  present  mourns.  .  .  .  And  here,  sir,  let 
me  ask  whether  from  a  Congress  thus  ably  formed,  and  from 
an  executive  thus  discerning  and  independent,  as  much 
knowledge  of  the  Constitution,  its  precise  directions,  and  the 
agency  it  intended  Congress  to  have  in  counting  the  votes  and 
declaring  the  President,  were  not  to  have  been  expected,  as 
from  the  present.  Were  not  the  then  executive,  and  a  num- 
ber of  the  members  of  both  Houses,  members  of  the  convention 
which  framed  the  Constitution;  and  if  it  intended  to  give  to 
Congress,  or  authorize  them  to  delegate  to  a  committee  of  their 
body,  powers  contemplated  by  this  bill,  could  the  Congress  or 
the  President  of  1792  have  been  so  extremely  uninformed, 
and  indeed  ignorant  of  its  meaning  and  of  their  duty,  as  not 
to  have  known  it  ?  " 

But  the  experience  of  intervening  years  has  taught  the 
nation  that  some  legislation  supplementing  that  of  1792 
is  necessary,  or  the  Constitution  is  defective.  As  soon 
as  Pinckney  had  finished  his  address,  the  vote  was  taken 
on  the  passage  of  the  bill,  which  was  carried  by  the  close 
vote  of  16  to  12,  Baldwin,  Langdon,  and  Pinckney  being 
among  those  recorded  against  it. 

The  bill  of  1800,  as  reported  to  the  Senate,  provided 
that  on  the  day  prior  to  the  opening  of  the  electoral 
votes  each  House  should  choose  by  ballot  six  persons, 
who,  with  the  chief  justice  of  the  United  States  (or  one 
of  the  associate  justices),  should  form  a  grand  committee. 
The  powers  of  the  grand  committee  are  thus  set  forth  in 
Section  8  of  the  bill : 

"  Sec.  8.   The  grand  committee  shall  have  power  to  inquire, 


The  Bill  of  1800  69 

examine,  decide,  and  report  upon  the  constitutional  qualifica- 
tions of  persons  voted  for  as  President  and  Vice-President  of 
the  United  States,  upon  the  constitutional  qualifications  of 
the  electors  appointed  by  the  different  States,  and  whether 
their  appointment  was  authorized  by  the  State  Legislature  or 
not;  upon  all  petitions  and  exceptions  against  corrupt,  illegal 
conduct  of  the  electors,  or  force,  menaces,  or  improper  means 
used  to  influence  their  votes,  or  against  the  truth  of  their  re- 
turns, or  the  time,  place,  or  manner  of  giving  their  votes; 
Provided  always  that  no  petition  or  exception  shall  be  granted, 
allowed,  or  considered  by  the  sitting  grand  committee,  which 
has  for  its  object  to  dispute  or  draw  into  question  the  number 
of  votes  given  for  an  elector  in  any  of  the  States,  or  the  fact 
whether  an  elector  was  chosen  by  a  majority  of  the  votes  in 
his  State  or  district." 

The  grand  committee  was  directed  by  the  bill  to  make 
a  report  showing  the  number  of  legal  electoral  votes  for 
each  person,  the  number  rejected  and  the  reason  for  re- 
jection. The  report  of  the  majority  of  the  committee, 
which  was  to  be  reached  in  secret  session,  was  to  decide, 
finally  all  disputes  and  to  determine  the  number  of  legal 
votes.  Under  such  a  measure  Congress  was  called  upon 
to  resign  its  functions,  if  it  had  any,  over  the  count,  to  a 
committee  so  constituted  that  the  Senate  would  always 
control  its  decisions.  Evidence  of  the  ambition  of  the 
Senate  to  become  the  deciding  factor  in  any  disputed 
presidential  election  had  appeared  in  some  of  the  amend- 
ments which,  even  at  that  early  day,  had  been  proposed 
to  the  method  of  election :  Humphrey  Marshall,  of  Ken- 
tucky in  the  Senate,  on  January  24,  1798,  had  offered 
an  amendment  proposing  among  other  things  that  the 
electors  distinguish  in  the  ballots  between  President 
and  Vice-President  and  that  the  Senate  elect  the  Vice- 
President,  should  the  electors  reach  no  choice  as  to  that 
officer.  The  third  section  of  his  amendment  may  be 
taken  as  an  index  of  the  spirit  pervading  that  section  of 


70  The  Electoral  System 

the  bill  of  1800  which  provides  for  the  eventual  control 
of  the  grand  committee,  and  was  as  follows :  **  Should  any 
contest  arise  relative  to  any  vote  for  President,  the  same 
shall  be  determined  by  the  Senate,  or  should  any  contest 
arise  relating  to  any  vote  for  Vice-President,  the  same 
shall  be  determined  by  the  House  of  Representatives." 
The  grand  committee  was  empowered  to  send  for  persons, 
papers,  and  records,  to  administer  oaths,  and  to  punish 
contumacious  witnesses,  as  fully  and  absolutely  as  the 
Supreme  Court  of  the  United  States  is  able  to  do  in  suits 
therein. 

The  bill  as  passed  by  the  Senate  is  substantially  the 
bill  reported  to  that  body,  the  only  important  change 
being  in  the  composition  of  the  grand  committee.  The 
Senate  decided  (and  rightly)  that  the  Supreme  Court 
should  have  nothing  to  do  with  the  count.  The  bill  pro- 
vided that  each  House  should  choose  six  of  its  members; 
that  the  Senate  should  select  three  others  of  its  own 
number,  from  whom  the  House  of  Representatives  should 
choose  one,  to  constitute  the  thirteenth  member  of  the 
grand  committee.  In  other  words,  the  Senate  bill  gave 
that  body  the  control  of  the  grand  committee  and  then 
vested  in  the  committee  the  final  and  absolute  decision 
of  all  questions  touching  disputed  returns.  Jonathan 
Dayton  alone,  of  the  members  of  the  Senate  who  had 
been  delegates  to  the  constitutional  convention  of  1787, 
voted  for  the  bill. 

The  bill,  as  Jefferson  wrote,  "underwent  a  revolution 
in  the  House  of  Representatives."  John  Marshall,  who, 
in  the  following  year,  was  appointed  by  President  Adams 
Chief  Justice  of  the  Supreme  Court  of  the  United  States, 
was  chairman  of  the  select  committee  of  the  House  to 
which  the  bill  was  referred.  Marshall  expressed  doubt 
upon  two  points,  whether  the  Senate  should  name  the 
chairman  of  the  grand  committee  and  whether  the  opin- 
ion of  that  committee  should  be  final.     If  we  may  rely 


The  Bill  of  1800  71 

upon  Jefferson,^  who  was  keenly  interested  in  the  fate  of 

the  bill, 

"Marshall  made  a  dexterous  mancEuvre;  he  declared 
against  the  constitutionality  of  the  Senate's  bill,  and  proposed 
that  the  right  of  decision  of  their  grand  committee  should  be 
controllable  by  the  concurrent  votes  of  the  two  Houses  of  Con- 
gress; but  to  stand  good  if  not  rejected  by  a  concurrent 
vote.  You  will  readily  estimate,"  wrote  Jefferson,  "the 
amount  of  this  sort  of  control,"  and  he  continued:  "The 
committee  of  the  House  of  Representatives,  however,  took 
from  the  committee  the  right  of  giving  any  opinion,  requiring 
them  to  report  facts  only,  and  that  the  votes  returned  by  the 
States  should  be  counted,  unless  reported  by  a  concurrent  vote 
of  both  Houses." 

What  the  House  committee  actually  did  was  to  reduce 
the  functions  of  the  grand  committee  to  those  of  a  simple 
committee  to  take  testimony  and  report  to  both  Houses. 
But  the  most  momentous  change  which  the  House  made 
was  in  the  eighth  section  of  the  bill,  as  to  the  procedure 
in  the  Houses  upon  a  disputed  return.  The  vital  expres- 
sion of  the  House  bill  was:  "And  if  the  two  Houses  have 
concurred  in  rejecting  the  vote  or  votes  objected  to,  such 
vote  or  votes  shall  not  be  counted,  but  unless  both 
Houses  concur,  such  vote  or  votes  shall  be  counted." 

The  amended  bill  passed  the  House  on  May  2d,  by  a 
vote  of  52  to  37,  and  was  returned  to  the  Senate,  which, 
on  May  8th,  amended  by  substituting  the  word  "admit- 
ting" for  "rejecting."  To  this  proposed  amendment  of 
the  Senate  the  House  refused  to  agree,  by  a  vote,  on 
May  9th,  of  73  to  15,  Harper,  of  South  Carolina,  and 
Bayard,  of  Delaware,  both  arguing  that  the  Senate 
amendment  had  very  materially  changed  the  principle  of 
the  bill,  inasmuch  as  it  would  put  it  in  the  power  of  one 
or  two  members  of  either  House  to  require  the  majority 

'  Jefferson  to  Edward  Livingston,  1800.     Randall's  Jefferson,  vol.  ii,  526. 


72  The  Electoral  System 

of  both  Houses  to  admit  a  vote  or  votes;  in  default  of 
which  the  whole  vote  of  a  State  might  be  rejected.  This, 
it  was  argued,  was  contrary  to  the  maturely  expressed 
will  of  the  House.  The  Senate  refusing  to  recede,  the 
bill  was  lost.  Thus  the  effort  to  provide  a  method  for 
the  settlement  of  disputes  in  regard  to  electoral  returns 
resulted  in  failure,  because  of  an  irreconcilable  conflict 
between  the  two  Houses  upon  the  question  whether  one 
House  alone  had  the  right  to  reject  the  vote  of  a  State 
or  the  power  resided  concurrently  in  the  two  Houses. 
It  may  seem  extraordinary  that  the  Federalists,  who  had 
a  majority  in  the  House  of  Representatives,  could  not 
pass  the  Ross  bill  through  that  body.  Jefferson,  in  com- 
menting upon  their  inability  to  "carry  a  single  strong 
measure  through  the  Lower  House,  during  the  whole 
session,"  wrote  to  Madison  that  "when  they  met  it  was 
believed  they  had  a  majority  of  twenty,  but  many  of 
these  were  new  and  moderate  men  and  soon  saw  the  true 
character  of  the  party,  to  which  they  had  been  well  dis- 
posed when  at  a  distance." 

While  the  subject  was  under  consideration  in  the 
House,  Albert  Gallatin  disapproved  of  the  provision  in- 
corporated in  the  House  bill  that,  in  case  of  doubt,  the 
two  Houses  should  separate  to  their  respective  chambers 
to  consider  the  votes  which  were  objected  to,  and 
proposed  as  a  substitute  that  if  questions  should  arise 
at  the  counting  of  the  votes,  they  should  be  submitted, 
without  debate,  to  be  decided  by  a  majority  of  the  mem- 
bers of  both  Houses  present  in  the  joint  session.  His 
motion  evoked  a  long  debate,  but  was  defeated  by  the 
very  close  vote  of  46  to  44.  The  idea  that  the  two 
Houses  assembled  in  joint  session  have  lost  their  separate 
identity,  and  are  merged  in  one  body  having  constitutional 
jurisdiction  over  all  questions  touching  the  electoral 
count,  reappeared  in  the  debates  in  1857  and  1876,  and 
in  various  forms  was  broached  in  the  debates  culminating 


The  Bill  of  1800  73 

in  the  Act  of  1887.  The  propriety  of  either  House 
retiring  from  the  joint  session  has  often  been  discussed. 
The  Constitution  requires  the  count  to  proceed  in  the 
presence  of  the  two  Houses,  and  it  has  been  persuasively 
argued  that  no  step  can  be  taken  unless  both  Houses  are 
present. 

In  1824,  Martin  Van  Buren,  as  the  organ  of  the  Judi- 
ciary Committee  of  the  Senate,  in  response  to  a  resolution 
passed  December  i6,  1823,  that  the  committee  ascertain 
and  report  what  the  public  interest  and  the  public  safety 
required  in  regard  to  the  count  of  electoral  votes,  re- 
ported a  bill.  This  bill,  in  which,  as  Senator  Conkling 
said,  in  1877,  **the  ultra  pretensions  of  the  Senate  were 
abandoned,"  passed  the  Senate  on  April  loth,  but  not 
without  objection  by  Macon,  of  North  Carolina,  one 
of  the  ablest  Senators  of  that  day,  that  it  went  beyond 
the  constitutional  power  of  Congress.  The  House  re- 
ferred the  bill  to  its  Committee  on  Judiciary,  of  which 
Webster  was  the  chairman,  and  it  was  reported  back 
without  amendment  by  Webster,  but  no  further  ac- 
tion was  taken.  The  bill  provided,  among  other  things, 
that  on  the  first  occasion  when  the  votes  were  to  be 
counted,  the  joint  meeting  should  be  held  in  the  hall  of 
the  House,  and  on  all  future  occasions  "in  the  centre 
room  of  the  capitol,"  which,  said  Senator  Conkling  in 
the  debate  of  January,  1877,  was  the  rotunda.  "They 
were  to  meet  under  the  dome  of  the  capitol  on  neutral 
ground  between  the  two  halls."  As  to  the  procedure 
the  bill  prescribed  that  the  packet  containing  the  certifi- 
cates from  the  electors  of  each  State  should  then  be 
opened  by  the  president  of  the  Senate,  beginning  with 
the  State  of  New  Hampshire,  and 

"if  no  exceptions  are  taken  thereto,  all  the  votes  contained  in 
such  certificates  shall  be  counted;  but  if  any  exception  be 
taken,  the  person  taking  the  same  shall  state  it  in  writing, 


74  The  Electoral  System 

directly  and  not  argumentatively,  and  sign  his  name  thereto; 
and,  if  the  exception  be  seconded,  each  House  .  .  .  shall 
immediately  retire,  without  question  or  debate,  to  its  own  de- 
partment, and  shall  take  the  question  on  the  exception,  with- 
out debate,  by  ayes  and  noes.  So  soon  as  the  question  shall 
be  taken  in  either  House,  a  message  shall  be  sent  to  the  other 
informing  them  of  the  decision  of  the  question,  and  that  the 
House  sending  the  message  is  prepared  to  resume  the  count; 
and  when  such  message  shall  have  been  received  by  both 
Houses,  they  shall  again  meet  in  the  same  room  as  before,  and 
count  shall  be  resumed.  And  if  the  two  Houses  have  con- 
curred in  rejecting  the  vote  or  votes  objected  thereto,  such 
vote  or  votes  shall  not  be  counted;  but  unless  both  Houses 
concur,  such  vote  or  votes  shall  be  counted." 

The  bill  of  1800  having  failed  because  of  the  hopeless 
division  of  opinion  betw^een  the  two  Houses  of  Congress, 
and  differences  of  view  as  to  the  respective  powers  of  the 
Houses  developing  from  time  to  time,  and  a  like  fate 
overtaking  the  bill  of  1824,  no  further  legislation  was 
attempted  by  Congress  until  1865,  with  the  single  excep- 
tion of  the  Act  of  1845.' 

'  In  1845,  for  the  first  time,  the  words  "college  of  electors,"  or  "elec- 
toral college,"  appear  in  any  legislation.  They  are  first  found  in  the  de- 
bates, about  1800. 


CHAPTER  IV 

COUNTING,   1861-1873— THE  MORTON  BILL 

WHEN  the  two  Houses  met  for  the  purpose  of 
opening  the  electoral  certificates  on  February 
13,  1 861,  eleven  of  the  States  of  the  Union  had  seceded 
and  had  attempted  to  organize  a  government  known  as 
the  Confederate  States  of  America.  Returns  had  been 
transmitted  from  the  seceding  States  to  the  president  of 
the  Senate  in  the  preceding  December,  but  upon  the 
theory  that  there  was  "an  indissoluble  union  of  inde- 
structible States,"  these  States  were  still  within  the 
Union,  and  their  electoral  votes,  having  been  given  while 
they  were  constituent  parts  of  the  Union,  were  entitled 
to  be  counted,  and  all  the  votes  were,  in  fact,  counted. 
The  usual  joint  committee  was  appointed.  Nothing 
occurred  to  mar  the  tranquillity  of  the  proceedings. 
The  president  of  the  Senate,  Breckenridge,  of  Ken- 
tucky, who  declared  the  result,  subsequently  became  a 
major-general  in  the  Confederate  army. 

In  1864,  parts  of  Louisiana  and  Tennessee  having  been 
occupied  by  the  forces  of  the  United  States,  President 
Lincoln,  in  conformity  with  the  proclamation  issued  by 
him  in  August,  1861,  authorized  State  governments  to 
be  organized,  and  these  appointed  presidential  electors 
in  November,  1864.  The  electors  in  these  States  had 
assembled,  voted,  and  transmitted  certificates  to  the 
president  of  the  Senate.  The  leaders  in  Congress  fore- 
saw a  renewal  of  the  fierce  discussion  of  1857  regarding 

75 


76  The  Electoral  System 

the  validity  of  these  certificates,  unless  some  measure 
were  adopted  to  foreclose  debate.  As  Senator  Edmunds 
some  years  later  stated  in  the  Senate,  they  were  anxious 
to  provide  against  the  contingency  that  the  Southern 
Confederacy  might  send  votes  to  the  president  of  the 
Senate,  **  adequate  with  the  Democratic  returns  from 
loyal  States  to  reject  Mr.  Lincoln  and  seat  General  Mc- 
Clellan,  who  was  supposed  to  be  more  favorable  to  their 
views."  Hence  they  framed  a  joint  resolution,  which 
was  passed  by  both  Houses.  After  reciting  that  the 
inhabitants  of  the  States  of  Virginia,  North  Carolina, 
South  Carolina,  Georgia,  Florida,  Alabama,  Mississippi, 
Louisiana,  Texas,  Arkansas,  and  Tennessee,  had  rebelled 
against  the  Government  of  the  United  States,  had  con- 
tinued in  a  state  of  armed  rebellion  for  more  than  three 
years  and  were  in  such  a  state  of  armed  rebellion  on  the 
8th  of  November,  1864,^  that  no  valid  election  for  Presi- 
dent and  Vice-President  was  held  therein  on  said  day,  the 
resolution  declared  said  States  not  entitled  to  representa- 
tion in  the  electoral  college  for  choice  of  President  and 
Vice-President  of  the  United  States  for  the  term  of  office 
commencing  on  March  4,  1865;  it  further  provided  that 
no  electoral  votes  from  either  of  those  States  should  be 
received  or  counted.  Mr.  Lincoln  delayed  action  upon 
the  resolution  until  the  day  fixed  by  law  for  the  opening 
of  the  electoral  college.  It  was  not  until  the  very  day 
of  the  count  "that  he  conquered  his  reluctance,"  says 
Morse,  "and  when  at  last  he  did  so,  and  decided  to  sign 
the  resolution,  he  at  the  same  time  carefully  made  his  po- 
sition plain  by  a  brief  message. ' '  He  returned  the  resolu- 
tion, with  his  formal  approval,  to  the  House  from  which 
it  emanated,  in  a  message  disclaiming  all  right  of  the 
executive  to  interfere  in  any  way  in  the  matter  of  can- 
vassing or  counting  the  electoral  vote,  and  asserting  his 

'  Added  in  the  Senate,  because  insurrection  had  then  ceased  in  Louisiana, 
and  Tennessee  and  these  two  States  had  sent  in  electoral  votes. 


Counting,  1861-1873  ^^ 

conviction  that  the  two  Houses  of  Congress  have  com- 
plete power  to  exclude  from  counting  all  electoral  votes 
deemed  by  them  to  be  illegal.  Mr.  Lincoln,  in  renounc- 
ing all  prerogative  of  the  executive  to  interfere,  may  not 
have  intended  to  discriminate  between  conflicting  claims 
as  to  the  exact  lodgment  of  the  power  to  count  the  votes; 
sufficient  for  him  that  the  executive, under  the  guise  of 
a  joint  resolution,  should  have  no  concern  with  the 
count.  It  has  been  asserted  that  Lincoln's  delay  in  ap- 
proving the  joint  resolution  led  to  the  adoption  of  the 
famous  twenty-second  joint  rule.  Upon  this  point, 
Senator  Edmunds  made  this  interesting  statement  in  the 
Senate  on  December  11,  1876: 

"The  twenty-second  joint  rule  sprang  into  existence  one 
morning  here.  .  .  .  Nobody  knew  exactly  who  the  father 
of  it  was.  I  think  I  have  seen  it  stated  that  the  Senator  who 
contrived  it,  a  few  years  afterwards,  expressed  his  great  aston- 
ishment that  any  such  thing  should  ever  have  been  presented 
and  adopted.  A  very  distinguished  Senator,  once  the  chair- 
man of  the  Committee  on  the  Judiciary  of  this  body,  indeed 
for  a  very  long  time  and  still  a  prominent  statesman  in  the 
central  part  of  the  continent,  expressed  his  infinite  surprise 
that  such  a  thing  as  that  should  be  in  existence;  and  yet  on 
looking  it  up  it  turned  out  that  he  was  the  identical  person 
who  wrote  it  and  put  it  through." 

Senator  Edmunds  subsequently  mentioned  Lyman  Trum- 
bull, of  Illinois,  by  name,  as  the  author  of  the  resolution. 
Trumbull,  who  was  chairman  of  the  committee  of  the 
Senate  in  January,  1865,  appointed  to  ascertain  and  re- 
port a  mode  of  examining  the  votes  for  President  and 
Vice-President,  had  actually  moved  the  passage  of  the 
rule.  This  rule  did  not  require  the  President's  signature, 
being  simply  a  rule  of  the  two  Houses,  and  was  probably 
substituted  because  of  alarm  lest  President  Lincoln  might 
not  sign  the  joint  resolution.     After  the  usual  language 


78  The  Electoral  System 

as  to  the  assembling  of  both  Houses,  the  appointment  of 
tellers  and  their  duties,  and  the  reading  of  the  certificates 
by  the  tellers,  the  rule  provided  that  if,  upon  the  reading 
of  any  certificate,  any  question  should  be  raised  as  to  the 
vote  therein  certified, 

"the  Senate  shall  thereupon  withdraw,  and  said  question 
shall  be  submitted  to  that  body  for  its  decision;  and  the 
Speaker  of  the  House  of  Representatives  shall  in  like  manner 
submit  said  question  to  the  House  of  Representatives  for  its 
decision ;  and  no  question  shall  be  decided  affirmatively^  and  no 
vote  objected  to  shall  be  counted^  except  by  the  concurring  votes  of 
the  two  Houses. ' ' 

This  did  not  require  the  President's  signature  and  seems 
to  have  been  put  in  this  shape  for  that  reason.  It  was 
objected  in  the  Senate  that  under  this  rule  either  one  of 
the  two  Houses  might  disfranchise  a  State. 

"Suppose,"  said  Cowan,  of  Pennsylvania,  "there  is  a 
question  then  whether  the  votes  of  Louisiana  shall  be  counted. 
The  Senate  retires  to  its  chamber,  and  decides  that  it  shall; 
the  House  of  Representatives  organizes  and  decides  that  it 
shall  not;  how  is  the  question  then  to  be  decided  ?  ...  I 
think  it  belongs  to  the  Houses  in  joint  convention  to  decide 
that  question  when  it  arises.  It  is  evident  that  they  are  there 
with  some  power  and  authority  over  it.  .  .  .  Any  one 
[either]  of  the  Houses  could  disfranchise  a  State," 

under  this  rule.  To  this  Trumbull  replied  that  if  Cowan 
meant  the  joint  vote  was  to  be  taken  per  capitay  there 
was  no  constitutional  authority  for  such  action,  an-d  such 
a  course  had  never  been  pursued  since  the  Government 
was  formed ;  but  he  failed  to  meet  Cowan's  criticism  upon 
the  rule  that : 

"  If  there  was  a  partisan  majority  in  the  Senate  opposed  to 
counting  the  votes  of  a  particular  State,  all  it  had  to  do  would 


Counting,  1 861-1873  79 

be  to  stand  firmly  upon  its  resolve  that  they  should  not  be 
counted,  and  that  State  would  be  disfranchised  by  the  act  of 
the  Senate  alone.  The  House  would  have  the  same  privilege 
precisely.     Was  that  ever  contemplated?  " 

To  this  Trumbull  rather  lamely  rejoined  that  the  obsti- 
nate refusal  of  either  House  to  attend  the  joint  session 
would  break  up  the  Government,  and  one  imaginary  case 
was  as  likely  to  happen  as  the  other. 

The  canvass,  for  such  it  had  come  to  be,  of  the  electoral 
vote  took  place  on  February  8,  1865,  ostensibly  under 
both  the  joint  resolution  and  the  joint  rule.  When  the 
tellers  had  completed  their  report,  which  made  no  men- 
tion of  the  votes  of  Louisiana  or  Tennessee,  Senator 
Cowan  inquired  of  the  Vice-President  whether  there  were 
any  further  returns  to  be  counted ;  for,  said  the  Senator, 
"if  there  are,  I  would  inquire  why  they  are  not  submitted 
to  this  body  in  joint  convention,  which  is  alone  capable 
of  determining  whether  they  should  be  counted  or  not." 
The  Vice-President  replied:  "The  chair  has  in  his  pos- 
session returns  from  the  States  of  Louisiana  and  Ten- 
nessee, but,  in  obedience  to  the  law  of  the  land,  the  chair 
holds  it  to  be  his  duty  not  to  present  them  to  the  joint 
convention."  Cowan  then  asked  whether  the  joint  reso- 
lution had  received  executive  approval,  and  forced  the 
chair  to  acknowledge  that  it  had.  The  twenty-second 
joint  rule,  although  in  force,  was  not  operative  in  the 
count  of  1865,  for  Louisiana  and  Tennessee  were  excluded 
from  the  count  under  the  terms  of  the  joint  resolution 
which  had  just  received  the  President's  signature.  Such 
a  rule  was  a  perversion  of  the  powers  of  Congress.  A 
rule  is  to  govern  the  conduct  and  proceedings  of  bodies, 
but  is  never  designed  as  a  substitute  for  legislation.  Its 
inappropriateness  is  apparent  in  the  fact  that  its  opera- 
tions were  negative,  and  enabled  one  House  to  check  the 
other.     Applied  in  strictness  it  would  have  brought  the 


8o  The  Electoral  System 

Government  to  an  end,  for  if  one  House,  for  partisan 
advantage,  might  reject  the  returns  of  certain  States, 
the  other,  if  of  opposite  politics  and  actuated  by  the 
same  kind  of  impulses,  might  reject  the  votes  of  other 
States. 

"  The  power  assumed  by  Congress  in  the  adoption  of  this 
joint  resolution  [rule],"  says  Stanwood,  "  has  frequently  been 
assailed  as  an  invention  of  the  Republican  party,  and  as  a 
power  never  before  asserted.  But  by  reference  to  the  pro- 
ceedings in  Congress  in  the  year  1800  it  will  be  seen  that  a  bill 
making  permanent  provision  for  counting  the  electoral  vote 
failed  only  because  the  Senate  then  insisted  that  either  branch 
of  Congress  might  reject  a  vote,  while  the  House  of  Repre- 
sentatives maintained  that  it  should  be  rejected  only  by  a 
concurrent  vote." 

The  bill  of  1800  never  became  law  and  the  power  was 
never  exercised  before  1865.  The  Senate  of  1800,  frus- 
trated in  its  aim  to  control  the  count  through  the  grand 
committee,  was  probably  for  that  reason  impelled  to 
amend  the  House  substitute  bill  so  as  to  vest  either 
House  alone  with  power  to  reject  the  vote  of  a  State. 
Some  of  the  ablest  senators  of  the  day  denounced  the 
bill  as  unconstitutional.  In  the  House,  in  support  of 
the  necessity  of  concurrent  action  to  reject  a  State  vote, 
were  men  like  Marshall,  Bayard,  and  Harper. 

The  action  of  Congress  in  1865  is  the  first  instance  of 
the  rejection  of  the  votes  of  a  State  by  Congress,  for  it 
will  be  recalled  that  the  count  was  in  the  alternative  in 
1 82 1,  1837,  and  1857.  This  rejection  was  not  due  to 
general  legislation  as  to  disputed  or  doubtful  returns,  but 
was  based  upon  the  joint  resolution,  which  was  special 
legislation. 

When  the  electoral  count  was  made  in  1869  the  scenes 
of  tumult  and  disorder  eclipsed  even  the  violent  occur- 
rences of  1857.     A  stormy  debate  followed  in  the  House, 


Counting,  1861-1873  81 

lasting  three  days  after  the  count  was  completed.  The 
origin  of  the  trouble  was  the  status  of  certain  lately  re- 
constructed States,  especially  Georgia.  Congress  in  the 
preceding  session  had  passed  a  resolution  defining  the 
circumstances  under  which  the  lately  rebellious  States 
might  vote  at  the  coming  presidential  election.  No  elec- 
toral vote  from  any  of  these  States  was  to  be  counted 
unless  at  the  time  prescribed  by  law  for  the  choice  of 
electors,  there  was  a  government  organized  and  in  opera- 
tion in  the  State  under  a  constitution  adopted  after  March 
4,  1867,  and  unless  the  election  had  been  held  under  the 
authority  of  that  constitution  and  government,  and  unless 
the  State  had  become  entitled  to  representation  in  Con- 
gress pursuant  to  acts  of  that  body.  This  resolution  was 
vetoed  by  President  Johnson,  but  was  passed  over  his 
veto  by  two  thirds  of  both  Houses.  Virginia,  Mississippi, 
and  Texas  were  not  allowed  to  participate  in  the  election. 
Georgia  at  the  time  of  the  count  had  her  representatives 
in  the  House,  but  the  question  whether  she  had  fully 
complied  with  the  reconstruction  acts  of  Congress  was 
still  before  the  Senate.  To  avoid  the  count  of  Georgia's 
electoral  vote,  and  the  possible  inference  that  she  was 
entitled  to  all  the  prerogatives  of  a  State,  Edmunds 
offered  in  the  Senate,  on  February  6,  1869,  a  resolution 
which  provided  for  an  alternative  count  of  her  vote  after 
the  manner  established  by  the  Missouri  precedent  of 
1821. 

The  resolution  was  criticised  by  Trumbull  and  opposed 
by  Hendricks,  of  Indiana,  and  Whyte,'  of  Maryland,  but 
agreed  to,  and  was  promptly  approved  in  the  House.  As 
was  afterwards  said  by  General  Butler,  o£  Massachusetts, 
it  was  passed  in  the  Senate  "with  very  little  debate," 
and  "put  through  this  house  at  night  without  a  single 
word  of  debate,  under  a  suspension  of  the  rules,"  with 
nearly  one  half  of  the  House  absent.     The  joint  session 

"  Grandson  of  the  eminent  and  eloquent  William  Pinkney,  of  Maryland. 

6 


82  The  Electoral  System 

occurred  on  February  lo,  1869.  The  first  objection  re- 
lated to  the  count  of  the  votes  certified  from  Louisiana, 
and  was  that  no  valid  election  of  electors  had  been  held 
in  that  State.  The  Senate  retired  to  its  chamber  and, 
after  considerable  discussion,  although  debate  was  not  in 
order,  decided  by  a  vote  of  5 1  to  7  that  the  votes  of  that 
State  should  be  counted.  The  House,  by  a  vote  of  137 
to  63,  reached  the  same  conclusion  ;  the  joint  session  was 
resumed  and  the  vote  of  Louisiana  was  accepted.  Geor- 
gia, for  some  reason,  had  been  placed  at  the  end  of  the 
list  of  States,  although  the  custom  had  been  to  call  the 
roll  alphabetically.  Butler,  of  Massachusetts,  objected 
under  the  twenty-second  joint  rule  to  the  count  of  its 
votes,  on  four  grounds:  first,  that  the  vote  of  the  elec- 
tors in  the  electoral  college  was  not  given  on  the  first 
Wednesday  of  December  as  then  required  by  law ; 
secondly,  that  at  the  date  of  the  election  the  State  had 
not  been  readmitted  to  representation  as  a  State  in  Con- 
gress or  become  entitled  thereto ;  thirdly,  that  she  had 
not  at  that  date  complied  with  the  reconstruction  acts  of 
Congress ;  and,  fourthly,  that  the  pretended  election  held 
in  that  State  in  the  preceding  November  was  not  a  free, 
just,  equal,  and  fair  election.  Butler's  objections  at  once 
raised  the  question  whether  the  count  was  to  be  had 
under  the  resolution  or  the  twenty-second  joint  rule. 
Edmunds,  in  answer  to  Butler's  objections,  urged  that 
the  two  Houses  were  proceeding  under  a  special  joint 
resolution  and  not  under  the  joint  rule,  and  that  under 
that  resolution  no  objection  to  Georgia  was  to  be  con- 
sidered, but  that  the  count  was  to  be  taken  in  the  alter- 
native. Butler,  replied  that  the  votes  must  either  be 
counted  or  rejected,  and  that  the  concurrent  resolution 
could  not  bind  the  joint  convention.  The  president  of 
the  Senate,  Wade,  of  Ohio,  ruled  to  uphold  the  concur- 
rent resolution,  the  purport  of  which  was  that  if  the  votes 
of  Georgia  should  not  change  the  result,  they  might  be 


Counting,  1 861-1873  83 

counted,  but  that  if  they  did  alter  the  result,  they  should 
not  be  counted.  A  burst  of  laughter  greeted  this  deci- 
sion. Butler  then  proposed  to  appeal  from  the  decision 
to  the  House  of  Representatives,  but  was  informed  by 
the  chair  that  such  an  appeal  was  impossible.  One  other 
member  of  the  House  objecting,  the  presiding  officer 
directed  the  Senate  to  retire.  Although  debate  was  not 
permissible,  much  talk  followed  in  the  Senate,  which  at 
last  resulted  in  a  vote  of  that  body,  of  32  to  27,  that 
under  the  joint  resolution  the  objections  to  counting  the 
electoral  vote  of  Georgia  were  not  in  order.  Wade,  the 
presiding  officer,  several  times  asked  how  the  decision  of 
the  Senate  was  to  be  announced  upon  the  reassembling 
of  the  two  Houses,  but  received  no  light.  Edmunds 
said  the  chair  ought  to  announce  the  decision  of  the 
Senate  and  then  "proceed  under  the  joint  rule"  [resolu- 
tion]. Sherman  declared  the  question  most  grave,  "be- 
cause if  the  rule  now  laid  down  is  to  be  observed,  no 
President  of  the  United  States  could  ever  be  elected  with 
the  Senate  one  way  and  the  House  the  other."  In  the 
meanwhile,  the  vote  in  the  House  was  upon  an  entirely 
different  proposition,  which  was  "shall  the  vote  of  Geor- 
gia be  counted,  notwithstanding  the  objections  of  the 
gentleman  from  Massachusetts?  "  The  House  promptly 
resolved  to  reject  the  vote,  by  150  yeas  to  31  nays. 
When  the  joint  session  was  resumed,  the  president  of 
the  Senate  declared  that  the  objections  of  the  gentleman 
from  Massachusetts  had  been  overruled  by  the  Senate, 
and  that  the  result  of  the  vote  would  be  stated  as  it 
would  stand  were  the  vote  of  Georgia  counted,  and  as  it 
would  stand  were  the  vote  of  that  State  not  counted. 
Butler  appealed  to  the  joint  convention,  but  the  presid- 
ing officer  declined  to  entertain  his  appeal.  Butler  in- 
sisted that  arbitrary  proceedings  could  not  "override  the 
privileges  of  this  House,"  but  he  and  all  other  repre- 
sentatives who  insisted  the  appeal  should  be  heard  were 


84  The  Electoral  System 

ruled  out  of  order  in  the  midst  of  a  great  uproar,  in 
which  Butler  rudely  demanded  that  the  Senate  should 
retire.  "We  certainly  have  the  right  to  clear  the  hall  of 
interlopers/*  The  count  was  completed  and  the  result 
declared  in  the  alternative,  as  in  1821  and  1857.  When 
the  House  resumed  its  session,  Butler  moved  a  resolution 
of  protest  that  *'the  counting  of  the  vote  of  Georgia  by 
order  of  the  president /r^  tem^  was  a  gross  act  of  oppres- 
sion and  an  invasion  of  the  rights  and  privileges  of  the 
House."  After  an  animated  and  tumultuous  debate  of 
three  days  his  motion  was  defeated. 

The  acrimonious  discussion  that  arose  in  the  House 
over  Butler's  resolution  exhibited  the  same  discordant 
views  that  had  appeared  in  every  preceding  debate  in 
Congress.  Butler  was  violent  and  denunciatory,  but 
sound  in  his  criticism  of  the  joint  resolution  as  an  evasion 
of  the  constitutional  duty  to  count.  It  had  not,  he  de- 
clared, **any  more  force  and  effect  than  the  blank  paper 
it  was  written  on.'*  The  Speaker,  Colfax,  defended 
Wade's  action.  Shellabarger,  of  Ohio,  in  an  exhaustive 
argument,  contended  that  the  president  of  the  Senate 
was  not  only  to  open  but  also  to  count  the  votes,  and 
that  no  concurrent  or  joint  resolution,  or  even  act  of 
Congress,  could  permit  the  Senate  and  the  House  to 
separate,  and,  by  themselves,  adopt  any  form  of  order  or 
decision  which  should  render  it  impossible  for  the  joint 
convention,  when  reassembled,  to  count  any  one  of  the 
States.  He  admitted  that  his  argument  gave  great  power 
to  the  president  of  the  Senate,  "but,"  said  he,  "there 
are  difficulties  whichever  way  we  turn."  The  danger  of 
giving  the  power  to  reject  the  votes  to  either  House  or 
both  Houses  was 

* '  even  greater  than  in  giving  it  to  the  president  of  the  Senate, 
because  by  rejecting  the  votes,  the  Senate  and  House  can 
throw  by  their  own  act  the  election  of  the  President  into  the 
House,  and  of  the  Vice-President  into  the  Senate.     .     .     . 


Counting,  1 861-1873  85 

Indeed,  the  gentleman  from  Massachusetts,  who  proposes  this 
most  severe  and  extraordinary  censure  has  exclaimed  himself, 
more  than  I  can  exclaim,  against  the  frightful  consequences 
which  would  come  from  permitting  one  or  either  House  of 
Congress  to  get  by  itself,  and  there,  in  separate  session,  by  the 
per  capita  vote  of  its  members,  without  debate,  vote  out  the 
decision  of  the  people  of  any  and  every  State  in  selecting 
the  Chief  Magistrate  of  the  republic." 

Shellabarger  dwelt  w^ith  emphasis  and  iteration  upon  the 
pernicious  nature  of  the  twenty-second  joint  rule,  declar- 
ing that  if  its  true  interpretation  was  that  no  vote  should 
be  counted  until  both  Houses,  by  separate  vote,  should 
concur  in  accepting  the  vote,  it  was  plainly  void  as  in 
conflict  with  the  Constitution,  "which  requires,  in  so 
many  words,  that  every  act  that  enters  into  and  makes  a 
counting  of  the  votes  shall  be  in  the  presence  of  the  two 
Houses."  But  he  was  not  so  successful  in  maintaining 
the  constitutionality  of  the  concurrent  resolution  or  in 
vindicating  Wade's  action,  for  an  alternative  count  is  in 
reality  no  count  at  all,  but  an  evasion.  Eldridge,  of 
Wisconsin,  was  on  truer  ground  in  criticising  both  the 
concurrent  resolution  and  the  twenty-second  joint  rule  as 
violating  the  Constitution. 

This  disgraceful  controversy  over  the  solemn  act  of 
ascertaining  who  had  been  elected  President  clearly  re- 
veals one  of  two  things:  Either  the  Constitution  had 
proven  faulty  or  Congress  had  for  years  shirked  its  duty 
in  failing  to  pass  any  general  law  to  regulate  the  count. 
Garfield  reminded  the  House  that  in  March,  1868,  he  had 
moved  that  the  Judiciary  Committee  should  be  em- 
powered to  inquire  into  the  expediency  of  providing  by 
law  for  the  settlement  of  a  contested  election  for  Presi- 
dent and  Vice-President,  but  that  no  report  had  been 
made  by  the  committee.  Congress  remained  deaf  to 
the  voice  that  spoke  of  danger,  yet  the  country  kept 
drifting  towards  the  maelstrom. 


86  The  Electoral  System 

The  counting  of  the  electoral  vote  in  February,  1873, 
was  not  attended  by  such  dramatic  incidents  as  marked 
the  count  of  1869,  yet  the  treatment  of  at  least  one  State 
was  grossly  unjust.  Louisiana  sent  two  sets  of  returns 
to  Washington,  one,  sustained  by  the  certificate  of  Gov- 
ernor Warmoth,  based  upon  a  partial  canvass  of  a  return- 
ing board  appointed  by  him  under  a  statute  of  the  State 
passed  in  1872;  the  other,  predicated  upon  evidence  as 
to  the  election  submitted  to  a  rival  canvassing  body 
known  as  the  Lynch  board.  From  the  report  of  a  special 
committee  of  inquiry  raised  in  the  Senate  of  the  United 
States,  it  would  seem  that  the  Louisiana  statute  had  not 
been  complied  with  by  the  governor,  and  also  that  the 
Lynch  board  had  not  been  permitted  to  inspect  the  re- 
turns. In  the  opinion  of  a  majority  of  the  Senate  com- 
mittee, the  Greeley  electors  had  received  a  majority  of 
the  votes  at  the  November  election.  Subsequent  to  the 
meeting  of  the  electors  in  December,  the  Supreme  Court 
of  Louisiana  decided  that  the  Lynch  board  was  the  legal 
returning  board,  but,  as  will  be  hereafter  seen  in  the 
discussion  of  the  Florida  case  before  the  Electoral  Com- 
mission of  1877,  the  majority  of  that  commission  held 
that  2i  post  hac  judgment  could  not  invalidate  the  title  of 
electors  who  had  previously  cast  their  ballots.  Senator 
Morton,  who  was  of  this  opinion  in  1877,  nevertheless 
stated  in  an  addendum  made  by  him  to  the  report  of  the 
Senate  committee  of  1873,  of  which  he  was  a  member, 
that  "decisions  of  courts  of  last  resort  are  made  at  the 
end  of  causes,  and  not  at  the  beginning,  and  are  held  to 
relate  back  and  establish  the  rights  of  parties  throughout 
the  whole  controversy."  In  the  joint  session  of  the  two 
Houses  held  on  February  12,  1873,  the  twenty-second 
joint  rule  was  again  enforced.  The  House,  upon  objec- 
tion to  the  electoral  vote  of  Arkansas,  which  was  attested 
by  the  Secretary  of  State  only  and  authenticated  by  his 
official  seal,  voted  to  count  it,  while  the  Senate  voted 


Counting,  1861-1873  87 

to  reject  it,  and  under  the  twenty-second  joint  rule  it 
was  not  counted.  Objection  was  made  by  Potter,  of 
New  York,  to  one  vote  of  Mississippi  cast  by  an  elector 
chosen  to  fill  a  vacancy,  which  was  certified  only  by  the 
Secretary  of  State.  Senator  Trumbull,  of  Illinois,  also 
objected  to  the  vote  of  Mississippi  on  the  ground  that 
the  certificates  failed  to  state  that  the  electors  voted  by 
ballot,  but  the  two  Houses  agreed  to  accept  all  the  votes 
of  the  State.  In  the  case  of  Louisiana  both  Houses 
were  also  in  accord, — that  none  of  the  returns  reported 
by  the  tellers  as  the  electoral  votes  of  that  State  should 
be  counted.  This  resolution  was  carried  in  the  Senate 
by  33  yeas  to  i6  nays,  and  was  also  carried  in  the  House.* 
The  authenticity  of  the  seal  attached  to  the  certificate 
from  Texas,  which  was  made  by  the  Secretary  of  State 
and  not  the  governor,  was  challenged,  but  both  the 
Senate  and  the  House  agreed  to  accept  the  votes  of  that 
State.  A  novel  question  arose  over  the  Georgia  returns. 
Hoar,  of  the  House,  objected  that 

"the  votes  reported  by  the  tellers  as  having  been  cast  by 
the  electors  of  the  State  of  Georgia  for  Horace  Greeley,  of 
New  York,  cannot  lawfully  be  counted  because  said  Horace 
Greeley,  for  whom  they  appear  to  have  been  cast,  was  dead  at 
the  time  said  electors  assembled  to  cast  their  votes,  and  was 
not  a  *  person  '  within  the  meaning  of  the  Constitution,  this 
being  an  historic  fact  of  which  the  two  Houses  may  properly 
take  notice." 

Upon  the  separation  of  the  two  Houses  to  pass  upon  this 
objection,  the  House,  by  a  vote  of  loi  to  99,  resolved 
that  the  vote  "ought  not  to  be  counted,  the  said  Horace 
Greeley  having  died  before  the  votes  were  cast."  The 
Senate,  on  the  contrary,  decided  that  the  votes  should 
be  counted,  but  was  perturbed  about  the  form  in  which 

*  Vote  in  House  is  not  given  in  the  record. 


88  The  Electoral  System 

its  resolution  should  be  phrased.  The  motion  offered 
was  that  **the  electoral  votes  of  Georgia  cast  for  Horace 
Greeley  be  counted."  To  this  Senator  Conkling  wished 
to  add,  "the  function  of  the  two  houses  being  ministerial 
merely  and  this  question  being  independent  of  the  ques- 
tion of  the  effect  of  the  votes  or  of  the  count."  This 
amendment,  which  was  defeated,  was  unsuccessfully  re- 
newed in  other  forms,  and  the  Senate  finally  agreed  to 
count  Georgia's  vote,  44  yeas  to  19  nays.  As  three  of 
Georgia's  electors  had  voted  for  Greeley,  the  votes  of 
three  of  the  electors  of  that  State  were  excluded  under 
the  joint  rule.  The  two  Houses  of  Congress  differing 
as  to  Louisiana,  the  votes  of  that  State  were  rejected. 

The  Arkansas  case  illustrates  the  gross  injustice  which 
the  twenty-second  joint  rule,  with  its  denial  of  debate, 
rendered  possible.  The  point  of  the  objection  to  the 
vote  of  that  State  was  that  the  returns  read  by  the  tellers 
were  not  certified  according  to  law.  The  House  voted 
to  count,  but  the  Senate  to  reject,  and  the  State  was 
accordingly  disfranchised  under  the  joint  rule.  In  the 
debate  in  March,  1876,  upon  the  Morton  bill  to  count 
the  electoral  vote,  Senator  Sherman  acknowledged  that 
the  Arkansas  decision  was  unjust. 

"  Each  senator  went  up  to  the  desk  and  examined  the 
paper,  and  without  having  time  to  look  at  the  law,  without 
having  even  time  to  send  to  the  library  to  see  what  the  con- 
stitution of  Arkansas  required,  we  fell  into  the  error  of  sup- 
posing a  fact  which  did  not  exist,  that  the  State  of  Arkansas 
had  a  seal,  and  therefore  we  rejected  the  vote  of  that  State 
because  of  the  want  of  a  State  seal  to  the  certificate." 

Morton's  confession  of  error  was  even  blunter;  he  pro- 
nounced the  Senate  decision  "a.  foolish  blunder,"  which 
liad  the  astonishing  result  "that  in  twenty  minutes  we 
disfranchised  about  six  hundred  thousand  people."  The 
Federalist  would  assuredly  never  have  declared  the  elec- 


The  Morton  Bill  89 

toral  system  perfect  if  its  author  could  have  conceived 
such  an  outcome  as  constitutionally  possible. 

A  few  weeks  before  the  electoral  count  of  1873,  Senator 
Morton,  who  had  for  years  been  giving  serious  thought 
to  the  difficulties  arising  in  connection  with  the  count, 
moved  in  the  Senate  the  following  resolution : 

** Resolved,  That  the  Committee  on  Privileges  and  Elections 
be  instructed  to  examine  and  report,  at  the  next  session  of 
Congress,  upon  the  best  and  most  practicable  mode  of  electing 
the  President  and  Vice-President,  and  providing  a  tribunal  to 
adjust  and  decide  all  contested  questions  connected  therewith, 
with  leave  to  sit  during  vacation." 

Senator  Morton's  speech  upon  the  resolution  is  an  admi- 
rable exposition  of  the  meaning  and  purpose  of  the  elec- 
toral system  and  an  irrefragable  argument  against  the 
"twenty-second  joint  rule."  It  well  shows  how  the 
electoral  machinery  has  been  perverted  from  the  original 
design,  and  exposes  its  fallacies,  absurdities,  and  in- 
justices. 

Of  the  twenty-second  joint  rule,  Morton  asserted  that 
it  was  adopted  without  much  consideration  and  with  a 
view  apparently  of  furnishing  an  additional  safeguard 
against  the  acceptance  of  electoral  votes  from  States  that 
had  recently  been  in  rebellion.  "It  is,  in  my  judgment," 
he  said,  "the  most  dangerous  contrivance  to  the  peace  of 
the  nation  that  has  ever  been  invented  by  Congress." 

Morton's  speech  further  portrayed  the  evil  effects  of 
the  joint  rule: 

**  Here  is  a  powerful  temptation  to  the  House  of  Represent- 
atives, by  non-concurrence,  to  throw  the  election  into  its  own 
body,  and  thus,  perhaps,  secure  the  election  of  a  candidate 
who  may  have  been  overwhelmingly  beaten  at  the  polls.  .  .  . 
The  rule  is  an  invitation  to  partisans  to  make  captious  and 
factious  objections.     It  makes  the  concurrent  action  of  the 


90  The  Electoral  System 

two  Houses  necessary  where  it  should  not  be ;  and  to  sum  up 
its  perilous  absurdity,  its  'monstrous  illogic,'  its  dangerous 
unconstitutionality,  it  places  it  in  the  power  of  a  defeated 
party,  which  may  happen  to  have  a  majority  in  either  House, 
to  defeat  an  election  by  the  people  and  to  take  the  chances  of 
anarchy  or  of  victory  by  throwing  the  election  into  the  House 
of  Representatives." 

The  Constitution,  he  argued,  in  providing  that  "each 
House  may  determine  the  rules  of  its  own  proceedings," 
did  not  confer  the  power  upon  the  two  Houses  by  a  joint 
rule  to  enable  either  House  to  disfranchise  States  by  re- 
jecting their  electoral  votes. 

"  The  provisions  of  this  [the  twenty-second  joint]  rule,  to 
have  any  validity,  must  be  embraced  in  a  law  duly  enacted, 
which  has  been  submitted  to  the  President  for  his  approval; 
and,  even  as  a  law,  it  would  be  the  most  fearful  enactment  on 
the  statute-book,  conferring  as  it  does  upon  either  House  the 
power  to  block  the  wheels  of  government  and  plunge  the  na- 
tion into  anarchy.  It  was  the  purpose  of  the  framers  of  the 
Constitution  to  make  the  executive  and  legislative  branches  so 
far  independent  of  each  other  that  the  existence  of  the  one 
would  not  depend  upon  the  consent  or  action  of  the  other; 
but  here  is  a  rule,  a  mere  parliamentary  rule,  which  gives  to 
either  House  a  fatal  negative  upon  the  election  of  a  President 
by  the  people.  A  power  so  vast  and  dangerous  certainly  can- 
not be  created  as  a  mere  rule  of  proceeding." 

Senator  Morton  favored  an  election  of  President  and 
Vice-President  directly  by  the  people  in  congressional 
districts.      His  immediate  object,  he  declared,  was 

"  not  so  much  to  advise  and  propose  remedies,  as  to  point  out 
to  the  Senate  and  to  the  country  dangers  that  lie  in  the  path- 
way of  the  nation,  contingencies,  some  of  them  not  remote^  but 
near  and  probable,  which  threaten  the  country  with  revolution 
and  the  government  with  destruction,  and  to  urge  that    .    .    . 


The  Morton  Bill  91 

now,  in  a  time  of  peace  and  political  calm  throughout  the 
nation,  we  should  address  ourselves  to  the  removal  of  these 
perilous  obstructions  that  were  hidden  to  the  eyes  of  our 
fathers,  but  have  been  brought  to  our  knowledge  by  obser- 
vation and  experience." 

The  committee  should  bring  forward  such  measures  as 
might  be  deemed  necessary,  whether  in  the  form  of 
statutes  or  amendments  to  the  Constitution.  The  reso- 
lution was  adopted.  On  January  26,  1875,  Morton 
introduced  in  the  Senate  a  bill  "to  provide  for  and 
regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon." 
It  differed  from  the  twenty-second  joint  rule  in  providing 
that  no  electoral  vote  or  votes  from  any  State  should 
be  rejected  except  by  the  affirmative  vote  of  the  two 
Houses,  whereas  the  twenty-second  joint  rule  prescribed 
that  a  vote  should  not  be  counted  if  either  House  ob- 
jected. In  case  of  more  than  one  return  from  a  State, 
the  bill  provided  that  that  return,  and  that  only,  should 
be  counted  which  the  two  Houses,  sitting  separately, 
should  decide  to  be  the  true  and  valid  return.  A  long 
debate  ensued  in  which  every  feature  of  the  bill  was  care- 
fully discussed.  Edmunds  sought  to  amend  it  so  as  to 
provide,  by  way  of  analogy  to  the  bill  of  i8cx),  that  all 
the  papers  opened  in  the  presence  of  the  two  Houses 
should  be  referred  to  a  sworn  committee  of  four  Senators 
and  four  Representatives,  who  should  report  to  the  two 
Houses,  and  that  their  report  should  be  accepted  unless 
both  Houses  agreed  upon  rejection, — a  measure,  in  this 
last  feature,  similar  to  the  Electoral  Commission  bill  of 
1877.  This  amendment  was  not  accepted,  and  the  bill, 
after  some  verbal  alterations,  was  passed  by  the  Senate 
by  a  vote  of  28  to  20.  The  lengthy  debate  revealed 
many  sharp  conflicts  of  opinion.  Edmunds  held  that  the 
election  of  a  President  might  be  made  the  subject  of  a 
contest  in  the  courts  of  the  United  States,  but  Thurman 


92  The  Electoral  System 

took  issue  with  him.  The  Federal  courts  had  no  juris- 
diction to  try  a  case  involving  the  title  to  the  presidency. 
If  such  a  suit  was  affirmed  upon  appeal  by  the  highest 
tribunal  and  its  decision  should  direct  the  President  de 
facto  to  be  ousted  from  office,  how  was  the  judgment  to 
be  enforced?  The  Supreme  Court  would  be  powerless 
to  execute  its  judgment;  "it  has  no  army,  it  has  no 
treasury."  How  can  a  judgment  of  ouster  be  enforced 
against  the  man  who  is  de  facto  President  of  the  United 
States?  The  fathers  plainly  never  intended  that  the 
office  of  chief  magistrate  should  be  contested  in  any 
court;  on  the  contrary,  whatever  the  error  in  deciding 
the  election,  the  Constitution  meant  that  the  title  of  the 
person  declared  to  be  President  in  the  joint  assembly  of 
the  two  Houses  should  never  be  in  doubt  for  a  moment 
after  he  had  been  declared  elected  in  pursuance  of  its 
provisions.  Merrimon,  of  North  Carolina,  Hamilton,  of 
Maryland,  Saulsbury,  of  Delaware,  like  Gallatin,  Macon, 
John  Nicholas,  and  John  Randolph  in  1800,  denied  the 
right  of  the  two  Houses  to  separate  during  a  joint  ses- 
sion, and  insisted  that  every  step  of  the  count  must  be  in 
the  physical  presence  of  both  Houses  sitting  as  one  body. 
It  was  known  that  the  succeeding  House  of  Representa- 
tives would  be  under  Democratic  control.  Bayard, 
Eaton,  and  others  counselled  delay,  that  the  measure 
might  have  the  benefit  of  non-partisan  discussion.  Some 
argued  that  it  deprived  the  president  of  the  Senate  of  his 
constitutional  power  to  count,  and  others  condemned  it 
as  at  variance  with  the  organic  law  in  other  particulars. 
All  the  affirmative  votes  were  Republican,  but  Carpenter, 
Conkling,  Edmunds,  and  Windom  voted  with  the  Demo- 
crats against  it. 

The  bill,  which  was  not  acted  upon  by  the  House,  was 
revived  in  the  Senate  in  the  following  winter  and  was 
fully  and  exhaustively  discussed  during  March,  1876. 

The  first  section  provided  substantially  as  follows :  The 


The  Morton  Bill  93 

two  Houses  of  Congress  shall  assemble  in  the  hall  of  the 
House  of  Representatives,  at  the  hour  of  one  o'clock,  on 
the  last  Wednesday  in  January  next  succeeding  the  meet- 
ing of  the  electors  of  President  and  Vice-President  of  the 
United  States,  and  the  president  of  the  Senate  shall  be 
their  presiding  officer;  one  teller  shall  be  appointed  on 
the  part  of  the  Senate,  and  two  on  the  part  of  the  House 
of  Representatives,  to  whom  shall  be  handed,  as  they  are 
opened  by  the  president  of  the  Senate,  the  certificates  of 
the  electoral  votes ;  and  the  tellers,  having  read  the  same 
in  the  presence  and  hearing  of  the  two  Houses  then  as- 
sembled, shall  make  a  list  of  the  votes  as  they  shall  ap- 
pear from  the  certificates;  and  the  votes  having  been 
counted,  the  result  of  the  same  shall  be  delivered  to  the 
president  of  the  Senate,  who  shall  thereupon  announce 
the  state  of  the  vote,  and  the  names  of  the  persons,  if 
any,  elected,  which  announcement  shall  be  deemed  a 
sufficient  declaration  of  the  persons  elected  President  and 
Vice-President  of  the  United  States,  and,  together  with 
a  list  of  the  votes,  be  entered  on  the  journals  of  the  two 
Houses.  If,  upon  the  reading  of  any  certificate  by  the 
tellers,  any  question  shall  arise  in  regard  to  counting  the 
votes  therein  certified,  the  same  having  been  stated  by 
the  presiding  officer,  the  Senate  shall  thereupon  with- 
draw, and  the  question  shall  be  submitted  to  the  body  for 
its  decision  ;  and  the  Speaker  of  the  House  of  Represent- 
atives shall,  in  like  manner,  submit  the  question  to  the 
House  of  Representatives  for  its  decision ;  and  no  elec- 
toral vote  or  votes  from  any  State,  to  the  counting  of 
which  objections  have  been  made,  shall  be  rejected  except 
by  the  affirmative  vote  of  the  two  Houses.  When  the  two 
Houses  shall  have  voted,  they  shall  immediately  reassem- 
ble, and  the  presiding  officer  shall  then  announce  the  decis- 
ion of  the  question  submitted.  And  any  other  question 
pertinent  to  the  object  for  which  the  two  Houses  are  as- 
sembled may  be  submitted  and  determined  in  like  manner. 


94  The  Electoral  System 

The  language  of  the  second  section  was  in  effect:  If 
more  than  one  return  shall  be  received  by  the  president 
of  the  Senate  from  a  State,  purporting  to  be  the  cer- 
tificates of  electoral  votes  given  at  the  last  preceding 
election  for  President  and  Vice-President  in  such  State, 
all  such  returns  shall  be  opened  by  him  in  the  presence 
of  the  two  Houses  when  assembled  to  count  the  votes; 
and  that  return  from  such  State  shall  be  counted  which 
the  two  Houses,  acting  separately,  shall  decide  to  be  the 
true  and  valid  return. 

By  the  third  section  it  was  provided :  When  the  two 
Houses  separate  to  decide  upon  an  objection  made  to 
the  counting  of  any  electoral  vote  or  votes  from  any 
State,  or  for  the  decision  of  any  other  question  pertinent 
thereto,  each  Senator  and  Representative  may  speak  to 
such  objection  or  question  ten  minutes,  and  not  oftener 
than  once ;  but  after  such  debate  has  lasted  two  hours,  it 
shall  be  in  the  power  of  a  majority  of  each  House  to 
direct  that  the  main  question  shall  be  put  without  further 
debate. 

Section  4  declared :  At  such  joint  meeting  of  the  two 
Houses  seats  shall  be  provided  as  follows :  For  the  presi- 
dent of  the  Senate,  the  Speaker's  chair;  for  the  Speaker, 
immediately  upon  his  left ;  the  Senators  in  the  body  of 
the  hall  upon  the  right  of  the  presiding  officer;  for  the 
Representatives,  in  the  body  of  the  hall  not  provided  for 
the  Senators ;  for  the  tellers,  secretary  of  the  Senate,  and 
clerk  of  the  House  of  Representatives,  at  the  clerk's 
desk;  for  the  other  officers  of  the  two  Houses,  in  front 
of  the  clerk's  desk  and  upon  each  side  of  the  Speaker's 
platform.  The  joint  meeting  shall  not  be  dissolved  until 
the  electoral  votes  are  all  counted  and  the  result  de- 
clared; and  no  recess  shall  be  taken  unless  a  question 
shall  have  arisen  in  regard  to  counting  any  such  votes,  in 
which  case  it  shall  be  competent  for  either  House,  acting 
separately,  in  the  manner  hereinbefore  provided,  to  direct 


The  Morton  Bill  95 

a  recess  not  beyond  the  next  day,  at  the  hour  of  ten 
o'clock  in  the  forenoon. 

The  earlier  discussions  of  the  bill  related  to  its  separate 
provisions,  and  particularly  to  its  mode  of  dealing  with 
two  or  more  returns,  but  the  debate  afterwards  took  a 
wider  range  and  involved  the  fundamental  inquiry  as  to 
the  meaning  of  the  Constitution  and  where  it  had  in- 
tended to  repose  the  counting  power.  The  twenty- 
second  joint  rule  had  few,  if  any,  defenders.  The  rule 
was  rescinded  by  the  Senate  on  January  20,  1876. 
Bayard  considered  that  the  concurrence  of  the  House 
was  not  essential.  He  denounced  the  rule,  "that  gave 
the  power  of  absolute  veto  to  either  House  ...  in 
separate  session  and  without  an  opportunity  of  debate" 
as  "utter  usurpation,  utterly  without  warrant  in  the  Con- 
stitution, dangerous  in  the  extreme" ;  and  in  sufficiently 
plain  terms  he  reminded  the  Senate  that  the  rule  had  not 
been  rescinded  because  of  its  "monstrosity,"  for,  until 
there  was  a  change  in  the  majority  of  the  popular  branch 
of  Congress,  "this  rule,  with  all  its  unhallowed  and  dan- 
gerous and  despotic  power,  stood  unquestioned  and  un- 
assailed."  Whyte  called  it  "an  enormity,"  and  said  the 
Senate  was  wise  in  "annihilating"  it. 

The  necessity  for  a  general  law  was  obvious  to  many 
besides  the  framer  of  the  bill. 

"  Soon  after  the  count  of  the  votes  at  the  last  presidential 
election,"  said  Thurman,  "  I  took  occasion  to  say  in  the  Sen- 
ate that,  in  my  judgment,  unless  something  were  devised  to 
obviate  the  danger  to  the  country  that  might  grow  out  of  the 
count  of  the  vote  for  President,  we  might  find  the  country 
plunged  into  civil  war  upon  the  question  who  has  been  elected 
President  of  the  United  States.  That  count  was  calculated  to 
make  every  one  reflect,  to  make  every  one  feel  how  dangerous 
is  our  situation.  We  saw  more  than  one  State  deprived  of  its 
electoral  vote  on  that  count,  where  the  two  Houses  were 
divided  in  opinion;   we  saw  States  lose  their  vote  entirely; 


96  The  Electoral  System 

and  fortunate  it  was  for  the  country  that  the  rejection  of  those 
States  did  not  change  the  result." 

The  clause  of  the  bill  eliciting  the  most  earnest  discussion, 
reflecting  singular  differences  of  opinion,  related  to  double 
returns.  The  defect — that  the  two  Houses  might  never 
agree — did  not  escape  the  astuteness  of  several  Senators, 
yet  no  ingenuity  was  able  to  devise  a  satisfactory  pro- 
vision; for  the  reason,  doubtless,  that  the  theory  of  a 
congressional  count  by  two  Houses  (a  theory  at  variance, 
I  think,  with  the  Constitution)  is  subject  to  mathemati- 
cal laws  which  inexorably  forbid  a  solution  by  two  co- 
ordinate bodies.  Suppose  the  two  Houses  disagree,  is 
the  vote  of  the  State  then  to  be  sacrificed?  was  asked  by 
many  Senators.  "It  is  a  grave  question,"  said  Bayard, 
"whether  the  two  Houses  have  the  power  to  constitute 
themselves  a  tribunal  for  the  acceptance  or  rejection  of 
the  vote  of  a  State  at  will"  ;  and  he  doubted  "whether 
the  two  Houses  of  Congress  were  ever  intended  to  be- 
come the  judges  of  the  electoral  vote  of  the  people  of 
this  country."  Withers  pertinently  said  that  if  the  in- 
ability of  the  two  Houses  to  agree  upon  the  correct 
return  was  to  result  in  the  rejection  of  the  vote  of  a 
State,  it  was  left  in  the  power  of  either  House  to  veto 
the  vote  of  such  a  State,  and  Eaton  asked  Morton  to 
avert  this  possible  wrong  to  a  State  and  "find  some 
tribunal  which  will  determine  the  matter."  Thurman 
also  hoped  that  some  such  tribunal  might  be  devised, 
although  he  confessed  his  own  inability  to  suggest  any. 
He  did,  however,  utter  some  wholesome  truths.  In 
order  to  aid  in  the  solution  of  the  problem,  it  should  be 
remembered,  he  said,  that  "it  is  not  Congress,  in  its 
legislative  capacity,  .  .  .  Congress,  as  a  law-making 
power,  that  counts  the  votes.  .  .  .  Congress  can 
provide  by  law  the  mode  of  counting  the  votes.  The 
only  question  is  what  limitations  are  there  on  our  power 


The  Morton  Bill  97 

to  provide  that  mode."  So  sceptical  was  he  of  the 
ability  of  the  Senate  to  provide  some  ultimate  tribunal 
between  the  two  Houses,  that  he  feared  it  would  finally 
decide  to  give  the  decision  of  one  of  the  two  a  predomi- 
nance over  the  other. 

Various  remedies  were  proposed,  but  to  each  some 
valid  objection  was  advanced.  Cooper,  of  Tennessee, 
offered  an  amendment  providing  that  if  the  two  Houses 
should  not  be  in  accord,  that  return  should  be  counted 
which  the  House  of  Representatives,  voting  by  States, 
in  the  manner  prescribed  by  the  Constitution  when  the 
election  devolves  upon  it,  should  decide  to  be  the  true 
and  valid  return.  Kernan,  of  New  York,  thought  the 
amendment  would  partially  annul  the  will  of  the  people, 
because  a  State  having  only  one  representative  would 
exercise  a  power  "equivalent  to  the  vote  of  four  millions 
of  people  in  another  State,"  and  Morton  conclusively 
refuted  Cooper's  idea  that  his  plan  could  be  representa- 
tive of  the  people  when  it  proposed  to  leave  the  decision 
to  a  House  elected  two  years  previously ;  and  he  used  the 
occasion  to  quote  remarks  from  his  former  speeches,  to 
the  effect  that  the  constitutional  requirement  for  an  elec- 
tion in  the  House,  where  no  candidate  had  a  majority  of 
the  electoral  vote,  was  the  weakest  and  most  vicious 
feature  of  the  electoral  system.  Johnston,  of  Virginia, 
in  presenting  an  amendment  to  Cooper's  amendment, 
argued  that  a  vote  should  instead  be  had  by  States  in  a 
joint  meeting  of  the  two  Houses,  the  representation  from 
each  State,  including  its  Senators,  to  have  one  vote ;  but 
all  these  amendments  were  voted  down. 

Senator  Frelinghuysen,  of  New  Jersey,  held  it  would 
be  a  great  calamity  to  the  country  to  have  the  will  of  the 
people  defeated  in  the  election  of  President  by  the  failure 
to  count  the  vote  of  a  State.  It  was  a  duty,  he  said,  to 
enact  such  a  law  that  the  vote  of  every  State  should  cer- 
tainly be  counted.     Some  action  was  imperative,   but 


98  The  Electoral  System 

''the  best  that  can  be  said  for  any  plan  is,  that  it  is  not 
in  violation  of  any  provision  of  the  Constitution."  Fre- 
linghuysen  would  have  referred  the  difference  between 
the  two  Houses,  in  case  of  more  than  one  return,  to  the 
Chief  Justice  of  the  Supreme  Court,  the  presiding  officer 
of  the  Senate,  and  the  Speaker  of  the  House,  whose  de- 
cision should  be  final.  The  utmost  he  could  advance  for 
his  own  plan  was  that  it  "was  not  contrary  to  the  Con- 
stitution." The  fathers,  he  said,  had  not  progressed  so 
far  in  political  ethics  as  had  the  men  of  his  own  day. 
The  former  did  not  anticipate  two  governors  in  a  State. 
It  had  been  urged  by  Thurman  that  the  famous  passage 
in  Kent's  commentaries,  "I  presume,  in  the  absence  of 
all  legislative  provision  on  the  subject,  that  the  president 
of  the  Senate  counts  the  votes  and  determines  the  re- 
sult," implied  the  power  of  Congress  to  regulate  the 
entire  matter;  to  which  Whyte  responded  that  the  ques- 
tion was  whether  Kent,  in  this  expression,  meant  legisla- 
tion in  regard  to  organic  or  statute  law,  adding  that,  in 
his  opinion,  Kent  meant  not  a  statutory,  but  a  constitu- 
tional provision.  But  Johnston  quickly  retorted  that 
Chancellor  Kent  certainly  knew  the  difference  between  a 
legislative  and  a  constitutional  proceeding. 

Christiancy,  of  Michigan,  although  impressed  by  the 
reasoning  upon  which  the  power  of  the  two  Houses  to 
count  was  predicated,  was  ''inclined  to  think  the  only 
safe  mode  to  remedy  the  evil  is  by  an  amendment  to  the 
Constitution."  Stevenson,  of  Kentucky,  also  believed 
there  was  a  casus  omissus^  which  could  be  reached  only  by 
a  change  in  the  fundamental  law.  Whyte,  in  two  elabo- 
rate speeches,  forcibly  argued  that  the  president  of  the 
Senate  was  the  proper  person  to  count  the  votes,  and 
that  the  duty  was  ministerial.  He  appealed  to  the  pre- 
cedent set  at  the  formation  of  the  Government  by  the 
Resolution  of  1787,  framed  by  the  creators  of  the  Con- 
stitution, which  distinctly  laid  the  duty  of  counting  the 


The  Morton  Bill  99 

votes  upon  the  president  of  the  Senate,  and  with  much 
earnestness  declared  that  he  would  vote  for  no  bill 
**  which  takes  away  the  power  of  counting  the  vote,  the 
power  of  opening  the  returns,  from  that  officer,  whom,  in 
my  judgment,  our  fathers  designated  as  the  proper 
depositary  for  such  power." 

Dawes,  of  Massachusetts,  exclaimed  against  the  bill 
as  "a  delusion."  It  was  not  a  constitutional  bill;  what 
was  necessary  was  an  amendment  to  the  Constitution, 
but  as  the  bill  was  better  than  nothing  he  would  vote  for 
it.  Maxey,  of  Texas,  favored  reposing  the  power  to 
count  in  the  president  of  the  Senate  when  the  two 
Houses  could  not  agree.  Jones,  of  Florida,  considered 
the  bill  "a  plain  departure  from  the  Constitution,"  differ- 
ing little,  if  at  all,  from  the  much-condemned  twenty- 
second  joint  rule.  The  discussion,  as  Withers  said,  had 
"drifted  off  into  two  great  channels.  .  .  .  One  is, 
upon  whom  the  constitutional  right  devolves  to  count  the 
votes  of  ordinary  electors.  The  other  is,  .  .  .  what 
course  shall  be  taken  where  two  returns  come  up  from  a 
State,  each  claiming  to  be  the  proper  return  of  that 
State?"  He  pronounced  Whyte's  argument  upon  the 
first  branch  conclusive ;  and  the  same  view  of  the  duty 
of  the  president  of  the  Senate  was  taken  by  Maxey  and 
Stevenson,  while  Johnston  expressed  himself  as  diametri- 
cally opposed.  All  other  amendments  being  out  of  the 
way,  Maxey  proposed  an  amendment  giving  the  ultimate 
decision  upon  disputed  returns  to  the  president  of  the 
Senate,  but  it  in  turn  was  rejected.  Merrimon  there- 
upon proposed  to  amend  the  second  section  of  the  bill  so 
as  to  provide,  in  case  of  a  double  return,  that  that  return 
from  the  State  should  be  counted  which  should  "be 
duly  authenticated  by  the  State  authorities  recognized 
by  and  in  harmony  with  the  United  States  as  provided 
by  the  Constitution,"  and  supported  it  by  an  elaborate 
argument,    traversing   the  views  of  Whyte  and  others. 


loo  The  Electoral  System 

who  believed  the  president  of  the  Senate  should  count 
the  votes.  But  Morton  conclusively  exposed  the  weak- 
ness of  this  plan.  It  left  undecided  the  question  which 
of  the  two  pretended  governments  was  recognized  by 
and  which  one  was  in  harmony  with  the  United  States. 

"  There  being  two  returns  and  two  pretended  governments, 
somebody  must  decide  the  question.  We  say  the  president 
of  the  Senate  cannot  decide  it;  the  House  cannot  decide  it 
alone;  the  Senate  cannot  decide  it  alone.  Therefore,  that 
government  must  be  selected  by  both  Houses;  and  the  amend- 
ment of  the  Senator  still  leaves  the  main  question  open  to  be 
decided,  which  is  the  government  acting  in  harmony  with  the 
United  States?  in  other  words,  which  is  the  lawful  government 
of  the  State?  I  submit  to  my  friend  that  that  question  can 
only  be  determined  by  both  Houses,  and  where  the  two  Houses 
disagree  about  that,  the  question  is  left  open  just  as  it  was 
before." 

The  amendment  proposed  by  Merrimon  was  rejected, 
whereupon  Randolph,  of  Michigan,  to  reconcile  all  differ- 
ences, proposed  that  if  the  two  Houses  disagreed,  the 
disputed  returns  should  be  referred  to  the  Houses  as- 
sembled in  joint  meeting,  to  be  determined  upon  by  a 
per  capita  vote,  the  president  of  the  Senate  to  give  the 
casting  vote  if  the  votes  were  equally  divided.  This 
amendment  met  prompt  opposition,  as  being  in  conflict 
with  the  Constitution,  and  was  defeated.  The  final 
amendment  offered  was  by  Bayard,  that  the  House  of 
Representatives  should  alone  decide,  if  the  Houses  failed 
to  agree,  but  this  was  rejected. 

The  terms  of  the  bill  were  for  weeks  subjected  to  most 
careful  scrutiny  by  able  lawyers.  The  debate,  as  Bayard 
said,  was  a  "strong  proof  of  the  want  of  direct  provision 
in  the  Constitution  in  relation  to  this  question  of  the 
count  of  the  votes."  It  is  seldom  that  views  so  diverse 
have  been  expressed  in  relation  to  a  matter  that  seems  so 


The  Morton  Bill  loi 

simple  in  itself.  The  bill  was  passed  by  the  Senate  on 
March  24,  1876,  by  a  vote  of  32  to  26,  fifteen  members 
being  absent,  Bayard  and  all  of  the  Democrats,  except 
Thurman,  persisting  in  opposition.  With  them,  against 
their  own  party,  were  Conkling  and  Edmunds.  Morrill, 
of  Vermont,  and  Boutwell  were  among  those  not  voting. 

If  Congress  possessed  no  authority  to  pass  any  law, 
the  only  remedy  lay  in  a  constitutional  amendment,  for 
no  one  would  insist  that  any  more  power  than  the  Consti- 
tution had  given  to  the  two  Houses,  when  sitting  under 
that  clause  of  the  Constitution,  could  be  conferred  upon 
them  by  legislation.  Men  of  like  political  beliefs  expressed 
profound  differences  of  opinion,  some  arguing  for  the 
plenary  authority  of  the  president  of  the  Senate  to  de- 
cide upon  the  certificates,  and  count  the  votes;  others 
asserting  that  the  two  Houses  sitting  separately  were 
ultimate  arbiters;  others  again  contending  that  the  Con- 
stitution intended  to  give  the  two  Houses  when  sitting 
together  complete  power  to  decide  all  doubtful  questions ; 
others  again  regarding  any  interference  by  either  House 
or  by  the  Houses  in  joint  session,  with  the  counting  of 
the  vote,  as  an  unconstitutional  usurpation  of  power. 

Had  the  Morton  bill  been  passed,  the  difficulties  which 
arose  in  1877,  when  double  and  even  treble  returns  were 
presented  from  some  of  the  Southern  States,  might  have 
been  readily  solved,  but  the  measure  would  probably 
have  resulted  in  electing  Mr.  Tilden  to  the  presidency. 
Conkling  said  in  the  Senate,  in  January,  1877,  that  the 
bill  "would  have  deposited  with  the  House  of  Repre- 
sentatives absolutely  the  decision  of  the  late  election." 
Tilden  had  184  electoral  votes,  while  185  were  essential 
to  the  election  of  Mr.  Hayes.  As  more  than  one  return 
came  from  Florida,  South  Carolina,  Louisiana,  and  Ore- 
gon, and  as  the  Senate  and  the  House,  from  difference 
in  political  complexion,  would  not  have  been  able  to 
agree  upon  these  returns,  no  certificates  would  have  been 


I02  The  Electoral  System 

received  from  the  three  Southern  States  had  the  Morton 
bill  become  law,  and  one  electoral  vote  from  Oregon 
would  have  been  counted  for  Tilden.  Tilden  would  then 
either  have  had  a  majority  of  the  electoral  votes  counted, 
or,  if  without  a  majority  of  the  electors  appointed,  the 
election  that  would  then  have  taken  place  in  the  House 
of  Representatives  would  have  unquestionably  seated 
him  in  the  presidency. 

As  in  1875,  the  motives  of  the  advocates  of  the  bill  of 
1876  were  occasionally  impugned.  It  was  said  that  the 
inspiration  of  the  bill  was  partisan  and  its  object  to  fore- 
stall a  free  and  impartial  consideration  of  this  grave 
matter  by  the  next  Congress,  in  which  the  House  of 
Representatives  would  be  under  Democratic  control.' 
The  idea  of  political  advantage  may  have  actuated  some 
Senators,  yet  the  twenty-second  joint  rule  was  vehemently 
criticised  both  by  Republicans  and  Democrats.  Had  the 
joint  rule  been  in  force  in  1877,  it  would  probably  have 
elected  Mr.  Tilden,  for  the  House  alone  could  have  re- 
jected any  or  all  the  returns  from  Florida,  South  Caro- 
lina, or  Louisiana,  and  have  refused  its  acceptance  of  the 
Hayes  votes  from  Oregon. 

The  practical  operation  of  the  bill  of  1876,  had  it  be- 
come law,  would  have  been  as  follows :  A  single  electoral 
return  from  a  State,  upon  objection  to  its  receipt  by  any 
member  of  either  House  while  the  two  were  in  joint  ses- 
sion, would  have  been  submitted  to  the  two  Houses  sepa- 
rately, but  would  have  been  sure  in  the  end  to  be  counted, 
unless  both  Houses  concurred  in  throwing  it  out ;  whereas, 

'  Thus  Thurman  wished  the  decision  of  the  matter  remitted  to  the  next 
Congress,  "when  one  House  will  be  of  one  political  complexion  and  an- 
other of  another,  and  when  a  measure  may  be  matured  that  would  be  more 
likely  to  give  universal  satisfaction  :  for  I  take  it  to  be  almost  certain  that 
the  twenty-second  joint  rule  cannot  stand  as  the  law  of  Congress."  "You 
might  as  well,"  said  Edmunds,  "  institute  a  court  composed  of  two  judges, 
and  hold  that  no  evidence  shall  be  received,  as  the  present  rule  is,  except 
the  two  judges  concur  to  receive  it." 


The  Morton  Bill  103 

in  the  case  of  more  than  one  return  from  a  State,  the  vote 
of  the  State  was  certain  not  to  be  counted,  unless  both 
Houses  agreed  that  one  of  the  multiple  certificates  repre- 
sented the  true  and  valid  return  of  the  State's  vote.  In 
this  latter  provision  lay  its  weakness,  and  it  is  one  of  the 
radical  defects  in  the  Act  of  1887.  For  the  possibility  of 
securing  the  rejection  of  the  vote  of  a  State  might  lead 
to  the  fabrication  of  dual  returns.  Thurman,  who  hesi- 
tatingly voted  for  the  bill  of  1876,  thus  stated  the  argu- 
ment for  this  section:  "Something  must  be  done  for  a 
case  where  there  are  two  conflicting  returns;  and  what 
can  you  do  but  to  require  the  two  Houses  to  consider 
each  of  these  returns,  and  then  determine  which  of  them 
shall  be  received?  They  can  make  no  decision  to  receive 
one,  unless  both  Houses  concur."  But  the  difficulty  of 
the  problem  was  hardly  an  argument  for  erecting  the  two 
Houses  into  a  tribunal  to  solve  it,  unless  the  organic  law 
expressly  or  impliedly  conferred  this  power  upon  them, 
and  here  was  the  persistent  query. 

The  vote  was  so  nearly  upon  party  lines  that  Thurman 
promptly  moved  its  reconsideration.  While  he  confessed 
his  inability  to  see  any  partisan  advantage  in  the  bill,  he 
was  convinced  that  there  was  a  "fatal  omission"  in  it;  it 
did  not  provide  for  an  "ultimate  decision"  in  case  there 
were  two  or  more  returns  from  a  State.  He  candidly 
said  he  could  not  recall  a  discussion  in  the  Senate  on  any 
great  public  measure  that  had  been  freer  from  party  con- 
siderations, and  Morton  expressed  the  same  sentiment. 
The  motion  to  reconsider  was  subsequently  passed  by  a 
vote  of  31  to  23,  Conkling  and  Edmunds  voting  in  the 
affirmative  with  the  Democrats;  consideration  of  the  bill 
was  resumed  in  August,  but  the  proximity  of  the  election 
was  doubtless  the  reason  why  no  further  vote  was 
reached. 

The  constitutional  objections  to  the  bill,  often  reiterated 
in   the  course  of  the  debates,   cannot   but   impress  the 


I04  The  Electoral  System 

student  with  a  sense  of  the  great  departure  which  it  pro- 
posed from  the  intent  of  the  founders  of  the  Government, 
a  departure  that  was  accomph'shed  by  the  Act  of  1887. 
One  striking  fact  is  that,  whether  the  debate  be  in  the 
Senate  chamber  or  the  more  popular  House,  whether  it 
be  in  1800,  in  1821,  over  the  Wisconsin  vote  in  1857, 
during  the  reconstruction  era,  or  over  the  Morton  bill, 
we  listen  to  the  old  familiar  arguments,  and  hear  the  same 
doubt  raised  as  to  the  power  of  the  president  of  the 
Senate  or  of  the  two  Houses  to  count;  and  to  every 
legislative  panacea  objection  is  convincingly  urged  that 
nothing  short  of  a  constitutional  amendment  will  furnish 
an  effective  remedy. 


CHAPTER   V 

DEBATE  ON  THE  ELECTORAL  COMMISSION  BILL  OF  1 877. 

THE  preceding  review  illustrates  how  sharp  and  irrec- 
oncilable were  the  differences  of  opinion  whenever 
question  arose  upon  the  electoral  count  or  the  significance 
of  the  constitutional  mandate  "the  votes  shall  then  be 
counted."  This  brief  clause  seemed  to  be  a  riddle  com- 
parable with  that  propounded  by  the  ancient  sphinx  to 
Edipus.  Senator  Sherman,  in  the  debates  of  1877,  said 
that  since  1801  there  had  been  eleven  cases  of  disputes 
over  the  electoral  votes  and  that  twenty-one  objections 
had  been  made  to  the  votes  of  different  States.  Yet, 
although  there  had  often  been  angry  and  prolonged  de- 
bate. Congress  never  ventured  to  frame  a  bill  until  1875, 
and  that  bill,  while  twice  approved  by  the  Senate,  failed 
of  passage  in  the  House.     Seventy  years  previously 

"Congress,"  said  Senator  Edmunds,  during  the  debate  of 
1876-7,  "  had  endeavored  to  pass  a  law,  and  after  great  de- 
liberation the  two  Houses  had  separated  upon  a  radical  differ- 
ence as  to  the  treatment  that  a  disputed  certificate  was  to 
receive,  one  side  by  a  great  strength  of  votes  and  with  a  great 
show  of  reason  contending  that  nothing  ought  to  be  admitted 
into  this  most  vital  function  of  the  republic  except  what  the 
House  of  Representatives  and  Senate  should  agree  to  admit. 
The  other  said,  at  the  other  end  of  the  capitol,  by  a  still 
greater  number  of  votes  and  with  an  equal  show  of  reason, 
.  .  .  that  no  sister  in  this  republic  of  States  should  have  her 
voice  excluded  from  the  performance  of  this   most  interesting 

105 


io6  The  Electoral  System 

and  useful  function,  unless  the  two  great  powers  of  the  State 
and  people  agree  that  she  ought  to  be  rejected." 

The  old  divisions  still  persisted,  for  Pinckney,  in  1800,  in 
denying  Congress  the  power  to  decide  upon  the  vote  of  a 
State,  hardly  went  to  greater  length  than  Morton  in  1873, 
when  the  latter  said  that  "the  proposition  that  Congress 
has  power  to  sit  as  a  canvassing  board  upon  the  electoral 
votes  of  the  States,  admitting  or  rejecting  them  for 
reasons  of  its  own,  subverts  the  whole  theory  by  which 
the  appointment  was  conferred  upon  the  States."  With 
the  Houses  at  variance,  and  with  party  members  at  war 
among  themselves  over  the  proper  interpretation  of  the 
Constitution  as  to  the  powers  of  the  president  of  the 
Senate,  or  of  the  two  Houses  of  Congress,  with  conflict- 
ing opinions  as  to  the  necessity  of  remedial  legislation, 
or  the  competency  of  Congress  to  deal  with  a  subject 
upon  which  the  Constitution  was  silent,  or,  as  had  been 
asserted  by  strict  constructionists  and  loose  construction- 
ists alike,  over  which  the  States  had  plenary  and  exclusive 
jurisdiction,  there  was  imminent  danger,  as  had  often 
been  predicted,  that  a  presidential  election  would  occur 
when  **  alternative  counting"  would  be  impossible,  and 
when  a  true  count  would  become  essential  to  the  declara- 
tion of  the  true  result.  Constitutional  amendments  were 
from  time  to  time  introduced  in  Congress,  but  these 
usually  looked  to  such  a  change  in  the  organic  law  of  the 
nation  as  would  bring  about  an  election  of  the  chief 
executive  by  the  people,  in  districts.  General  Jackson, 
in  his  inaugural  messages,  never  forgetting  his  defeat  in 
the  House  election  of  1825,  urged  the  passage  of  an 
amendment  giving  the  election  directly  to  the  people. 
McDuffie  in  1823,  Benton  in  1824  and  again  in  1844,  and 
Gilmer  in  1835,  offered  resolutions  in  Congress  looking 
to  a  substantially  similar  change  in  the  organic  law.  But 
Congress  contented  itself  with  enacting  special  legislation 


Electoral  Commission  Bill  of  1877     107 

adapted  to  a  temporary  condition  when  it  passed  the 
joint  resolution  of  1865.  The  joint  rule  of  February  6, 
1865,  simultaneously  and  mysteriously  called  into  being, 
and  with  only  slight  debate,  was  rigorously  employed  in 
that  year  and  in  1873  to  enforce  the  congressional  policy 
of  reconstruction,  but  this  rule  was  repealed  by  the 
Senate  on  January  20,  1876,  the  House  then  being 
Democratic. 

The  presidential  election  of  1876  precipitated  the 
long-feared  crisis.  The  earliest  returns  in  November 
indicated  that  Mr.  Tilden  had  secured  184  electoral  votes 
out  of  a  total  of  369. 

The  riots  and  disorder  which  accompanied  the  election 
in  the  State  of  Louisiana  and  the  uncertainty  as  to  the 
vote  of  that  State  and  of  the  vote  of  South  Carolina  and 
of  Florida  are  familiar  history.  Although  Mr.  Chandler, 
chairman  of  the  Republican  National  Committee,  claimed 
on  the  morning  after  election  that  Mr.  Hayes  had  secured 
185  electoral  votes,  including  the  votes  of  these  three 
States,  the  country  quickly  realized  the  peril  which  would 
confront  it  when  the  count  came  to  be  made  in  the  pres- 
ence of  both  Houses,  if  there  should  be  no  agreement 
between  the  two  bodies  as  to  the  mode  of  counting,  and 
such  an  agreement,  with  the  two  Houses  in  antagonism, 
seemed  at  first  impossible.  It  was  asserted  by  one  mem- 
ber of  Congress  in  an  address  in  the  city  of  Washington 
that  one  hundred  thousand  persons  would  be  present  at 
the  capital  on  February  14,  1877,  to  see  that  the  votes 
were  counted,  and  Morton  in  the  Senate  stated  that  as- 
sertions of  a  similar  tenor  were  received  by  members  of 
Congress  from  all  parts  of  the  country.  Inasmuch  as  the 
Senate  was  Republican  and  the  House  Democratic,  it 
was  evident  that  neither  House  would  be  in  accord  with 
the  other  as  to  the  method  by  which  the  proceedings 
should  be  regulated.  The  claim  that  the  president  of 
the  Senate  (Mr.  Ferry),  a  Republican,  had  the  constitu-' 


io8  The  Electoral  System 

tional  power  to  count  was  revived,  while  in  the  House 
this  theory  of  the  powers  of  the  president  of  the  Senate 
was  repudiated,  and  resolutions  were  offered  denying  his 
possession  of  any  such  authority,  asserting  that  the 
power  was  in  both  Houses  concurrently  and  that  the 
House  would  consent  to  no  arrangement  which  would 
permit  questionable  returns  to  be  counted  without  its 
approval. 

In  an  article  published  by  Senator  Edmunds  in  the 
American  Law  Review,  m  October,  1877,  the  gravity  of 
the  danger  that  menaced  the  country  is  well  depicted. 
It  was,  he  said,  morally  certain  that  "the  Senate  would 
declare  Hayes  President,  and  the  House  Tilden."  In 
that  case,  he  continued, 

"  each  of  those  gentlemen  would  have  taken  the  oaths  of 
office,  and  attempted  to  exercise  its  duties;  each  would  have 
called  upon  the  army  and  the  people  to  sustain  him  against 
the  usurpations  of  the  other;  and  each  would  have  found  great 
numbers  of  supporters  rallying  to  his  standard  in  every  State 
and  district  of  the  Union.  The  legislative  branches  of  the 
government  would,  of  necessity,  have  been  placed  in  an  atti- 
tude of  direct  and  absolute  antagonism,  not  only  as  to  the  right- 
ful title  to  the  office  of  President,  but  upon  every  subject  of 
legislation;  for  there  could  be  no  legislation  without  an  execu- 
tive, and  neither  would  recognize  the  President  of  the  other. 
Mr.  Tilden  could  make  no  appointment  effectual,  for  the 
Senate  would  not  recognize  him;  and  neither  he  nor  Mr. 
Hayes  could  get  money  to  carry  on  the  government,  for 
neither  House  would  grant  it,  save  to  the  person  it  regarded 
as  the  true  President.  The  solemn  ceremonies  and  the  grand 
pageant  of  inauguration  would  be  only  the  first  act  in  the 
awful  tragedy  of  anarchy  and  civil  war;  lasting  probably  until 
the  time  for  the  next  presidential  election,  and  making  such 
election  practically  impossible,  unless,  indeed,  before  that 
time  some  other  system  of  government  should  have  been 
established  upon  the  ruins  of  our  national  structure." 


y 


Electoral  Commission  Bill  of  1877     109 

In  the  preceding  Senate,  in  March,  1876,  a  joint  reso- 
lution had  been  introduced  proposing  an  amendment  to 
Article  XII.  of  the  Constitution,  prescribing  that  the 
Supreme  Court  should  open  the  certificates  and  count  the 
votes,  and  that  no  person  holding  the  office  of  Justice  of 
the  Supreme  Court  should  be  eligible  for  President  or 
Vice-President  until  the  expiration  of  two  years  next 
after  he  should  have  ceased  to  be  justice.  But  this  reso- 
lution met  the  fate  of  all  attempts  to  amend  this  article 
of  the  organic  law  made  after  1804.  Early,  therefore,  in 
the  session  which  commenced  in  December,  1876,  it  was 
apparent  that  a  deadlock  would  exist  between  the  two 
Houses,  with  imminent  danger  to  the  peace  and  tranquil- 
lity of  the  nation,  unless  some  temporary  measure  of 
pacification  acceptable  to  the  two  opposing  Houses 
should  be  devised.  Fortunately  the  spirit  of  patriotism 
rose  higher  than  party  feeling.  On  December  14,  1876, 
the  House  of  Representatives  passed  a  resolution  for  the 
appointment  of  a  committee  of  seven,  with  power  to  act, 
in  conjunction  with  a  similar  committee  to  be  appointed 
by  the  Senate,  to  prepare  and  report  without  delay  a  bill 
for  the  removal  of  the  differences  of  opinion  as  to  the 
proper  mode  of  counting  the  electoral  vote,  and  as  to 
the  mode  of  settlement  of  such  questions  as  might  arise 
relative  to  the  legality  and  validity  of  the  returns  of  the 
votes  made  by  the  several  States,  to  the  end  that  the 
votes  should  be  counted  and  the  result  declared  "by  a 
tribunal  whose  authority  none  can  question  and  whose 
decision  all  will  accept  as  final."  This  resolution  was 
approved  without  regard  to  party  lines.  On  December 
1 8th  a  like  resolution  passed  the  Senate,  and  was  ap- 
proved by  President  Grant,  and  accordingly  each  House 
appointed  a  committee  of  seven  members.  The  Senate 
committee  consisted  of  Edmunds,  Morton,  Frelinghuy- 
sen,  Conkling,  Thurman,  Bayard,  and  Matthew  W. 
Ransom,  of  North  Carolina.     Henry  B.  Payne,  of  Ohio, 


no  The  Electoral  System 

Eppa  Hunton,  of  Virginia,  Abram  S.  Hewitt,  of  New 
York,  William  M.  Springer,  of  Illinois,  George  W.  Mc- 
Crary,  of  Iowa,  George  F.  Hoar,  of  Massachusetts,  and 
George  Willard,  of  Michigan,  constituted  the  House  com- 
mittee. On  January  i8,  1877,  the  joint  committee  sub- 
mitted a  report  to  the  respective  Houses,  in  which  all  the 
members  joined,  with  the  single  exception  of  Morton, 
recommending  the  passage  of  the  bill  that  subsequently 
became  the  Electoral  Commission  law.  In  the  Senate, 
Edmunds,  as  chairman  of  the  committee,  presented  its 
report,  together  with  the  bill  which  the  committee  had 
framed,  which  was  entitled:  "An  act  to  provide  for  and 
regulate  the  counting  of  votes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon, 
for  the  term  commencing  March  4,  1877."  As  the  title 
indicates,  the  bill  proposed  mere  special  legislation. 
Edmunds'  address  clearly  sketched  the  main  features  of 
the  bill.  The  bill,  in  brief,  after  providing  for  the  meet- 
ing of  the  two  Houses  on  January  31st,  and  the  appoint- 
ment of  two  tellers  on  behalf  of  the  Senate  (which  had 
customarily  appointed  but  one),  and  of  two  tellers  from 
the  House,  prescribed  that  where  but  one  return  was  re- 
ceived from  a  State  the  validity  or  regularity  of  which 
was  questioned,  that  return  should  not  be  discarded 
except  by  the  concurrent  vote  of  the  two  Houses,  thus 
reversing  the  principle  of  the  twenty-second  joint  rule. 
It  further  provided  that  where  more  than  one  return  was 
received,  all  questions  in  relation  to  the  returns  should, 
in  the  first  instance,  be  referred  to  a  commission  consist- 
ing of  fifteen  persons,  five  to  be  members  of  the  Senate, 
five,  members  of  the  House  of  Representatives  (each 
House  selecting  its  members  of  the  commission),  and  five 
from  the  Supreme  Court  of  the  United  States.  Four  of 
the  Supreme  Court  justices  were  designated  by  the  act 
— the  justices  assigned  to  the  first,  third,  eighth,  and 
ninth  circuits — and  the  fifth  justice  was  to  be  selected  by 


Electoral  Commission  Bill  of  1877     ^^^ 

his  four  judicial  associates  in  such  manner  as  the  major- 
ity of  the  four  should  deem  fit.  The  decision  of  a  major- 
ity of  the  commission  upon  all  such  returns  was  then  to 
be  referred  to  each  House  and  its  decision  was  to  stand 
as  the  determination  of  Congress,  unless  it  was  overruled 
by  both  Houses.  The  joint  session  was  to  commence  its 
work  two  weeks  earlier  than  usual,  in  order  to  give  the 
tribunal  time  to  pass  upon  any  questions  that  might  be 
submitted  to  it,  before  the  date  for  the  inauguration  of  a 
new  President  should  arrive. 

In  the  Senate  of  that  day,  and  also  in  the  House  of 
Representatives,  there  were  many  able  constitutional 
lawyers ;  and  while  it  has  been  said,  and  perhaps  justly, 
that  the  discussions  of  1877  have  added  nothing  to  the 
elucidation  of  the  perplexing  problem,  the  gravity  of  the 
occasion,  the  vigor  and  eloquence  of  the  opposing  argu- 
ments, and  the  remarkable  divergence  of  opinion,  justify 
some  brief  allusion  to  the  important  features  of  the  de- 
bate. At  the  outset  of  his  speech,  Edmunds  announced 
that  it  was  the  aim  of  the  joint  committee  to  prepare  a 
bill  which  would  effect  a  decision  that  all  men  would  de- 
clare to  be  right.  *  *  Opposing  political  opinions,  opposing 
political  convictions,  warm  wishes,  partisan  feelings  have 
subsided  on  both  sides,"  for  the  bill  had  the  unanimous 
sanction  of  all  members  of  the  joint  committee  save  one 
(Morton).  Wherever  but  one  set  of  returns  was  received 
from  a  State,  the  bill  provided  substantially,  if  not  liter- 
ally, what  the  Morton  bill  of  1876  contained  upon  this 
subject.  He  himself  had  not  approved  of  that  feature  of 
the  Morton  bill,  but  he  had  acquiesced  in  its  embodi- 
ment in  the  present  measure.  Respecting  the  appoint- 
ment of  a  commission,  he  gave  reasons  why  a  selection 
of  fifteen  had  been  made  instead  of  nine.  The  larger 
number  was  "so  large  as  to  produce  every  variety  of  in- 
tellectual capacity  and  learning  and  as  to  produce  con- 
fidence against  any  possible  attempt  that  might  be  made 


112  The  Electoral  System 

— scarcely  conceivable,  to  be  sure — to  unduly  influence 
any  one  or  two  or  three,"  while  it  was  at  the  same  time 
not  so  unwieldy  that  it  would  not  be  "capable  of  prompt, 
effective  consultation  and  deliberate  and  orderly  proced- 
ure and  decision."  That  such  a  measure  would  not  have 
been  practicable  without  the  antecedent  discussion  of 
almost  a  hundred  years,  Edmunds'  argument  seems  to 
imply.  The  bill,  in  fact,  was  a  compilation  from  all 
previous  experience.  Had  Congress,  without  the  advan- 
tage it  derived  from  the  study  and  discussions  of  its 
predecessors,  been  suddenly  called  upon  to  frame  a  bill, 
upon  a  novel  emergency,  in  the  absence  of  all  precedent, 
it  could  hardly  have  hoped  within  the  brief  time  per- 
mitted to  enact  a  measure  which  would  have  met  the 
general  acceptance  of  its  members  and  of  the  country. 
The  Supreme  Court  judges  to  be  placed  upon  the  com- 
mission were  selected,  said  Edmunds,  from  various  parts 
of  the  Union  in  order  to  represent  the  shades  of  opinion 
in  all  sections,  and — this  language  is  interesting  in  view 
of  the  result — 

**  to  guard  against  prejudices  in  the  minds  of  these  ten  millions 
of  active  voters,  .  .  .  not  to  guard  against  prejudice  in 
the  judges,  not  to  guard  against  prejudice  in  senators,  or 
members,  .  .  .  but  to  leave  no  faultfinder  in  the  country 
a  right  to  complain.  We  say  that  these  four  men  shall  choose 
a  fifth  from  among  their  own  associate  members." 

An  unfortunate  feature  of  the  measure,  frequently  ex- 
posed in  the  course  of  debate,  was  the  provision  which 
gave  the  four  judges  the  choice  of  the  fifth.  Although 
the  bill  had  been  subjected  to  intense  scrutiny  in  the  few 
days  succeeding  its  preparation,  the  chairman  of  the 
Senate  committee  had  observed  no  criticism  upon  the 
absolute  fairness  and  justice  of  the  mode  devised,  apart 
from  the  doubt  that  had  been  expressed  as  to  whether  it 
harmonized  with  the  Constitution.     The  bill  placed  each 


Electoral  Commission  Bill  of  1877     113 

of  the  fifteen  commissioners  upon  a  solemn  oath, 
and  they  would  unquestionably  "dismiss  every  consider- 
ation that  would  cloud  their  intellects  or  warp  their 
judgments." 

Edmunds  dwelt  upon  the  point  that  the  bill  clothed 
the  commission  with  authority  to  determine  how  many 
and  what  persons  had  been  duly  appointed  as  electors  in 
each  State,  inasmuch  as  the  duty  of  electing  the  Presi- 
dent, if  no  candidate  should  be  found  to  have  a  majority 
of  the  electoral  vote,  would  revert  to  the  House.  That 
the  House  might  know  whether  the  time  had  come  for 
the  exercise  of  its  constitutional  function  of  choosing  the 
chief  executive,  it  was  essential,  in  the  first  instance, 
that  the  commission  should  report  how  many  and  what 
electors  had  been  duly  appointed.  The  critical  question, 
upon  which  opinions  in  the  committee  had  varied,  was 
whether  the  measure  should,  in  express  terms,  vest  the 
commission  with  **the  power  to  descend  below  the  deci- 
sion of  a  State  authority."  The  consensus  of  the  com- 
mittee's opinion  approved  the  bill  in  its  existing  form, 
for  in  that  form  it  authorized  the  commission  to  consider 
all  double  returns,  with  the  same  powers,  if  any,  as  the 
two  Houses  possessed,  acting  either  separately  or  to- 
gether. The  contest  was  to  be  decided  in  accordance 
with  the  law  of  the  land  as  it  stood  at  the  time  of  the 
election,  for  it  was  neither  the  purpose  nor  the  province 
of  Congress  to  create  a  law  after  the  election,  which 
might  elect  an  executive  not  chosen  by  the  nation.  That 
would  be  substituting  the  will  of  Congress,  by  arbitrary 
and  unconstitutional  retrospective  legislation,  for  the  will 
of  the  people. 

A  measure  which  would  have  expressly  clothed  the 
commission  with  power  to  go  behind  the  returns,  however 
extra-constitutional,  would  probably  have  been  acclaimed 
with  delight  by  the  Democrats  of  the  nation,  but  Ed- 
munds skilfully  argued,  as  a  reason  why  no  such  power 


TI4  The  Electoral  System 

had  been  conferred,  that  if  the  two  Houses  possessed 
such  power,  they  possessed  it  under  constitutional  war- 
rant ;  while,  if  they  did  not  possess  it,  the  bill  should  not 
give  the  commission  such  unconstitutional  authority. 

The  next  question  related  to- the  constitutionality  of 
the  plan.  The  framers  of  the  Constitution  had  not  re- 
posed the  power  to  count,  nor  intended  to  repose  it,  in 
the  president  of  the  Senate,  hence  the  bill  deprived  that 
official  of  no  constitutional  function.  Edmunds,  in  deny- 
ing the  power,  said:  "It  staggers  human  credulity  that 
the  convention  [of  1787]  intended  to  turn  the  president 
of  the  Senate  into  a  judge  in  the  most  critical  of  all  cases 
for  the  well-being  of  the  republic."  The  fathers  had  not 
said  he  possessed  the  power,  and  for  forty  years  no  paper 
coming  from  a  State  under  its  great  seal,  certified  by  its 
governor  or  certified  by  electors,  had  been  drawn  into 
question.  He  defended  the  law  as  constitutional  under 
the  residuary  power  vested  in  Congress.  In  the  uncer- 
tainty in  which  the  matter  of  counting  was  left  by  the 
Constitution,  it  was  competent  for  Congress  to  create  a 
tribunal  impartially  to  consider  these  questions  and  report 
their  decision  to  the  two  Houses. 

The  bill,  as  he  stated,  expressly  provided  that  nothing 
in  the  act  should  be  held  to  impair  or  affect  any  right 
under  the  Constitution  and  laws  to  determine,  by  proceed- 
ings in  the  judicial  courts  of  the  United  States,  the  title 
of  any  person  who  should  be  declared  elected  or  who 
should  claim  to  be  President  or  Vice-President  of  the 
United  States,  if  such  right  exists. 

Morton,  the  only  member  of  the  joint  committee  who 
opposed  the  enactment  of  the  bill,  characterized  it  as  "a 
compromise,  like  the  Compromise  of  1820,  and  the  Com- 
promise of  1850."  He  affirmed  his  belief  that  Hayes  had 
been  elected  under  forms  of  law,  and  expressed  his  fear 
that  the  bill  in  some  obscure  manner  clothed  the  commis- 
sion with  power  to  go  behind  the  returns.     The  power  to 


Electoral  Commission  Bill  of  1877     ^^5 

count  was  either  in  the  president  of  the  Senate  or  in  the 
two  Houses,  and  if  in  the  two  Houses,  it  could  not  be 
delegated,  nor  was  the  vicious  and  unconstitutional 
nature  of  the  proposed  transaction  cured  by  referring 
the  matter  from  the  commission  back  to  the  two  Houses. 
He  stigmatized  the  bill  as  "a  contrivance,  to  use  the 
mildest  words,  a  contrivance,  a  patched-up  thing;  five 
representatives,  five  senators,  four  judges  first,  and  they 
to  choose  a  fifth,  and  thus  this  tribunal  is  to  be  created, 
that  is  to  make  a  President  of  the  United  States.  There 
are  no  analogies  for  it  in  our  Constitution  or  in  our  laws 
or  in  our  history."  Even  had  the  commission  been  re- 
stricted to  members  of  the  two  Houses,  it  would  have 
been  unconstitutional,  for  the  Houses  of  Congress  could 
not  appoint  a  committee  to  pass  a  law  and  make  it  bind- 
ing unless  it  was  reversed  by  both  of  them  concurrently. 
The  bill,  he  said,  **gives  an  appeal  from  the  commission 
to  the  Congress  of  the  United  States,  provided  that  if 
the  appeal  shall  be  sustained  by  both  Houses  concur- 
rently, the  decision  below  shall  be  reversed." 

Frelinghuysen  said  it  was  the  paramount  wish  of  the 
people  that  the  national  legislature,  rising  above  party 
considerations,  should  at  this  critical  period  do  exactly 
right.  Alluding  to  the  amendment  he  had  proposed  to 
the  Morton  bill  in  the  session  of  1876,  to  refer  all  dis- 
puted questions  upon  the  electoral  count  to  the  president 
of  the  Senate,  the  Speaker  of  the  House,  and  the  Chief 
Justice  of  the  United  States  to  decide,  he  declared  that 
the  measure  before  the  Senate  was  in  accord  with  the 
principle  of  that  amendment.  "I  can,"  he  added,  "con- 
ceive of  nothing  more  at  variance  with  the  Constitution, 
than  that  Congress  should  go  into  an  investigation 
whether  each  of  the  three  hundred  and  sixty-nine  presi- 
dential electors  fairly  received  a  higher  vote  than  his 
competitor,  or  whether  the  three  hundred  and  sixty-nine 
electors  were  all  eligible."     Congress  could  not  be  made 


ii6  The  Electoral  System 

a  grand  returning  board  to  investigate  millions  of  votes, 
nor,  for  that  matter,  he  might  have  added,  could  the 
commission  have  any  such  function.  If  no  bill  were 
passed,  quo  warranto  proceedings  to  test  the  title  to  the 
presidential  office  might  become  necessary  and  the  na- 
tional executive  might  justly  feel  impelled  to  extreme 
measures  to  preserve  public  order.  For  these  reasons 
his  voice  was  for  its  passage. 

Sherman  declared  the  bill  a  novelty,  but  was  reminded 
by  Edmunds  of  its  similarity,  in  many  features,  to  the 
Senate  bill  of  1800,  which  went,  said  the  latter,  "much 
further  than  this  bill."  Sherman  justly  criticised  it  as 
special  legislation,  and,  as  such,  of  evil  example,  deserv- 
ing careful  scrutiny.  The  vice  of  the  bill  lay  in  the  fact, 
not  plainly  printed  on  its  face,  that  Congress  intended 
the  commission,  so  far  as  the  members  from  the  House 
and  the  Senate  were  concerned,  to  be  composed  of  an 
equal  number  from  each  political  party.  There  were  to 
be  three  Republicans  and  two  Democrats  selected  from 
the  Senate  and  three  Democrats  and  two  Republicans, 
chosen  in  the  House,  to  sit  in  the  commission.  The  four 
justices  selected  by  the  bill  were  equally  divided  in  their 
political  views.  The  fifth  judge,  "the  controlling  mem- 
ber," is,  he  asked, — "to  be  selected  how?  In  such 
manner  as  the  majority  of  the  four  shall  deem  fit,  .  .  . 
by  ballot,  .  .  .  viva  voce,  ...  it  may  be  by 
law,  by  chance,  by  any  of  the  forms  of  chance  known  to 
gamblers."  For  the  selection  of  this  controlling  mem- 
ber, Congress  had  no  better  scheme  than  to  employ  "the 
element  of  blind  chance,"  and  this  fifteenth  commissioner 
was  to  decide  the  presidential  election.  He  arraigned  the 
bill  as  unconstitutional,  because  the  members  of  the  com- 
mission were  officers  under  the  law  and  the  Constitution, 
yet  were  not  to  be  appointed  in  a  constitutional  manner. 
As  the  bill  had  been  declared  analogous  to  the  bill  of 
1800,  he  reminded  the  Senate  that  that  bill  failed  because 


Electoral  Commission  Bill  of  1877     117 

of  a  difference  regarding  amendments  between  the  two 
Houses,  for  the  question  of  having  the  chief  justice  one 
of  the  grand  committee  was  eliminated  from  that  measure 
by  the  Senate  itself. 

The  speech  delivered  by  Senator  Conkling  may  be 
ranked  as  the  most  powerful,  as  it  was  the  longest  and 
most  exhaustive,  argument  in  favor  of  the  bill.  A  parti- 
san, a  stalwart  Republican,  he  had  been  expected  to 
array  himself  upon  the  side  of  those  who  would  assert 
the  plenary  power  of  the  president  of  the  Senate  to 
count.  The  claim  of  the  president  of  the  Senate  to 
count  was,  said  Jeremiah  S.  Black,  "the  great  rallying 
point  until  Mr.  Conkling  took  it  up,  and  in  a  speech  of 
surpassing  ability  utterly  demolished  and  reduced  it  to 
invisible  atoms."  '  Much  of  this  sort  of  applause  greeted 
the  speech  from  Democratic  sources.  The  late  Senator 
Hoar,  who  admits  in  his  autobiography  that  he  had 
formed  an  exceedingly  unfavorable  opinion  of  Conkling, 
eulogized  him  for  his  patriotic  stand  in  the  crisis  of  1877. 
"He  was  on  the  side  of  the  country  in  her  hour  of 
peril. '  *  Conkling  was  twitted  in  the  debates  for  unneces- 
sary prolixity  in  contending  that  the  president  of  the 
Senate  had  not  the  power  to  count,  for  it  was  said  that 
not  more  than  four  senators  considered  that  official 
clothed  with  any  such  function.  His  address  of  eight 
hours  was  characterized  by  Morton  as  a  "two-story 
speech."  Conkling  spoke  with  apparently  sincere  con- 
viction, and  after  study  of  every  utterance  in  regard 
to  the  subject  "  to  be  found  in  the  books. ' '  He  probably 
felt  it  incumbent  upon  him  to  leave  no  vestige  of  the 
claim  for  the  powers  of  the  president  of  the  Senate,  if  he 
were  to  vindicate  his  attitude  to  the  partisan  element  of 
the  Republican  party.  In  the  judgment  of  many,  both 
Democrats  and  Republicans,  he  achieved  his  aim,  yet  his 
argument,  while  cogent,  is  not  irresistible.     Conceding 

^Electoral  Conspiracy^  125  N.  A.  R.,  i,  23. 


ii8  The  Electoral  System 

that  a  power  which  Congress  has  claimed  to  exercise  is  a 
rightful  power  and  not  a  usurpation,  it  then  follows  that 
precedents  may  be  drawn  from  the  course  of  Congress 
to  refute  the  power  of  the  president  of  the  Senate  and 
establish  that  of  the  two  Houses;  but  if  the  tendency  of 
Congress  had  been  to  usurp  a  power  never  granted  to  it 
by  the  Constitution,  no  usurpation,  however  long  con- 
tinued, would  supply  the  original  lack  of  constitutional 
authority.  There  is  much  in  Conkling's  argument  that 
deserves  consideration.  He  reviewed  the  history  of  the 
clause  which  closes  with  the  inscrutable  words,  "the  votes 
shall  then  be  counted,"  showing  what  changes  and  trans- 
positions were  made  in  the  phraseology,  which,  neither 
in  its  original  form  nor  in  any  revision,  gave  the  presi- 
dent of  the  Senate  authority  to  count.  His  argument 
was  that  the  framers  of  the  Constitution  were  masters  of 
style,  that  every  word  was  used  advisedly,  and  that  the 
omission  of  the  Constitution  to  declare  in  unqualified 
terms  that  the  votes  should  be  counted  by  the  president 
of  the  Senate  clearly  evinced  that  the  power  was  not 
given  to  him.     In  stately  and  eloquent  phrase  he  said : 

**  The  men  who  drafted  this  solemn  instrument,  masters  of 
language  as  most  of  them  were,  were  so  fastidious  in  taste,  so 
scrupulous  in  the  execution  of  their  work,  so  determined  that 
words  should  become  exact  vehicles  of  thought,  that  they  ap- 
pointed a  committee  on  style,  in  order  that  every  syllable 
might  do  its  needed  office." 

Yet  he  overlooked  the  counter-argument,  for  the  ambi- 
guity operates  both  ways;  his  balanced  periods  might 
have  been  employed  against  the  contention  that  the  two 
Houses  were  to  count.  Morton  in  reply  trenchantly 
asked:  "If  it  had  been  the  intention  of  the  Constitution 
to  give  the  two  Houses  the  right  to  count  the  vote,  would 
it  not  have  said  so?  "  With  much  plausibility  Conkling 
urged  that  the  person  who  was  to  open  the  certificates 


Electoral  Commission  Bill  of  1877     119 

was  not  to  count;  that,  as  the  Houses  were  to  be  wit- 
nesses, they  should  be  participants;  that  the  president  of 
the  Senate  might  take  up  a  paper  and  peruse  it  as  he 
would  a  letter,  the  Senate  seeing  him  from  the  body  of 
the  hall,  but  nevertheless  no  better  able  to  see  or  know 
the  signatures  or  seals  or  words  or  figures  on  the  paper 
"than  if  they  gazed  at  the  spectacle  from  the  galleries,  or 
saw  it  as  a  concourse  sees  the  oath  of  office  administered 
to  the  President  on  the  eastern  portico  of  the  capitol." 
If  the  president  of  the  Senate  counted  and  announced 
that  no  one  had  a  majority,  the  House  would  be  forced 
either  to  accept  his  statement,  however  incredible  or 
against  its  own  belief,  and  proceed  to  an  election,  or  dis- 
regard his  statement  and  refuse  to  proceed.  He  dissented 
from  Morton's  somewhat  hasty  assertion  that  all  votes  are 
to  be  counted,  "good,  bad,  and  indifferent."  The  presi- 
dent of  the  Senate  had  no  power  to  send  for  persons  and 
papers,  to  compel  the  surrender  of  telegrams  or  imprison 
witnesses ;  hence  it  could  not  have  been  intended  that  he 
should  count.  But  this  argument  assigns  to  the  word 
"count,"  the  meaning  of  "canvass,"  which  was  not  in 
the  minds  of  the  framers  of  the  Constitution.  He  cited 
analogies,  somewhat  fanciful,  for  the  powers  of  Congress 
from  the  control  which  the  lords  and  commons  under 
the  British  constitution  exercised  over  the  election  and 
qualifications  of  officials,  and  drew  similar  arguments 
from  the  powers  of  the  early  State  Legislatures.  He 
enlarged  with  emphasis  on  the  much-quoted  expression 
of  Chancellor  Kent:  "In  the  absence  of  legislative  pro- 
vision on  the  subject,  I  presume  that  the  president  of 
the  Senate  is  to  count,"  and  showed  that  the  Chancellor's 
expression,  which  was  merely  "I  presume,"  being  pre- 
dicated upon  the  power  of  Congress  to  legislate,  conceded 
its  right  to  make  an  affirmative  enactment.  But  the 
nature  of  the  law  which  the  Constitution  authorizes  Con- 
gress to  make  was  the  very  question  at  issue. 


I20  The  Electoral  System 

Conkling  waved  aside  the  resolution  adopted  by  the 
convention  of  1787  (which  provided  that  the  president  of 
the  Senate  should  count  the  votes  at  the  first  election), 
as  **a  prefatory  or  provisional  proceeding.  The  resolu- 
tion did  not  profess  to  declare  or  construe  any  clause  in 
the  Constitution."  Beginning  in  1793,  he  said,  until 
1869, 

**as  often  as  electoral  votes  were  to  be  counted,  committees 
were  raised  by  each  House  in  advance,  to  ascertain  and  report 
the  mode  in  which  the  votes  should  be  examined.  The  com- 
mittees reported  how  the  proceedings  should  be  conducted, 
the  report  was  adopted  by  each  House,  and  one  thing  always 
provided  for  was  the  appointment  of  tellers  by  each  House. 
The  right  of  the  Houses  thus  asserted  was  never  questioned. 
No  president  of  the  Senate,  no  member  of  either  House  ever 
interposed  a  challenge.  When  the  day  to  open  the  certificates 
arrived,  the  two  Houses  directed  the  proceedings  throughout. 
The  tellers  counted.  Every  question  which  arose  was  referred 
to  the  Houses.  The  Houses  framed  the  certificate;  they 
directed  it  to  be  signed.  He  who  signed  it  was  the  organ  and 
representative  of  the  two  Houses." 

But  the  certificate  in  the  earlier  period  was  always  signed 
by  the  president  of  the  Senate  and,  as  already  noted,  if 
Congress  had  entered  upon  a  usurpation  of  power,  no 
argument  drawn  from  continued  usurpation  established 
the  original  authority. 

His  historical  review  was  elaborate.  He  quoted  Jeffer- 
son as  in  accord  with  the  Nicholas  amendment  in  the 
Senate  to  the  bill  of  1800,  that  **the  inference  from  the 
course  of  proceedings  in  Congress  was  that  the  power  to 
count  resided  in  both  Houses."  Committees  of  both 
Houses  were  continued  until  the  twenty-second  joint  rule 
was  adopted,  and  when  that  rule  was  repealed  the  custom 
was  revived.  It  is  interesting  to  note  his  repugnance  to 
the  joint  rule,  which  he  admitted  he  had  advocated  in 


Electoral  Commission  Bill  of  1877     121 

1865.  "Mr.  Stevens  reported  it  in  the  House,  and  de- 
manded the  previous  question  upon  it,  to  which  nobody 
objected ;  I  state  this  to  show  that  no  debate  took  place 
and,  according  to  my  recollection,  no  Republican,  not 
one,  recorded  himself  against  it.  I  believe  no  Republi- 
can Senator  voted  against  it."  In  the  same  context,  he 
acknowledged  that  it  had  been  wisely  repealed. 

In  support  of  the  power  of  Congress,  Conkling  cited 
the  Van  Buren  bill  of  April,  1824,  which  was  to  the  effect 
that  if  the  two  Houses  should  have  concurred  in  rejecting 
the  vote  or  votes  objected  to,  such  vote  or  votes  should 
not  be  counted;  but  that,  unless  both  Houses  should 
concur,  such  vote  or  votes  should  be  counted.  He  thus 
closed  his  allusion  to  the  Van  Buren  bill:  "Be  it  wise  or 
unwise,  it  asserts  again,  by  a  unity  of  voices,  with  no  re- 
corded doubt,  that  the  paramount  law  had  reposed  in  the 
two  Houses  the  duty"  to  count  and  see  that  the  true 
result  was  constitutionally  ascertained.  Reviewing  the 
proceedings  in  1817,  1821,  1837,  and  1857,  he  said  that 
Senator  Douglas,  John  J.  Crittenden,  of  Kentucky,  and 
others,  in  the  latter  year,  protested  in  the  joint  session, 
over  which  Senator  Mason  was  the  presiding  officer, 
"against  any  curb  or  bit  upon  proceedings  here,"  and 
that  the  president  of  the  Senate,  who  was  commonly  as- 
serted to  have  controlled  the  count,  disclaimed  all  inten- 
tion to  influence  the  proceedings.  He  patriotically  said 
that  he  was  not  surrendering  the  rights  of  the  Republican 
party,  and  that  he  wished  Hayes  to  have  a  title  so  clear 
that  it  could  never  be  challenged.  The  bill  was  not  a 
compromise ;  it  was  to  establish  the  fact  of  his  election. 
"To  ascertain  and  establish  the  fact  is  not  a  compromise." 
Nor  did  the  bill  involve  a  surrender  of  any  rights.  The 
Morton  bill  of  the  preceding  winter  would  have  given 
the  House  of  Representatives  absolute  power  to  decide 
the  election ;  yet  this  bill  was  "branded  as  a  surrender,  by 
those  who  lately  insisted  that  one  House  and  one  House 


122  The  Electoral  System 

alone,  in  unbridled  caprice,  and  with  no  statement  of 
reasons  required,  might  exclude  a  State  by  merely  say- 
ing the  vote  shall  not  be  counted."  To  the  objection 
that  Congress  was  making  an  unwarrantable  delegation 
of  power,  he  replied  that  the  two  Houses,  consisting  of 
four  hundred  members,  could  not  each  handle,  scrutinize, 
examine,  and  tabulate  all  the  contents,  true  and  false,  of 
the  electoral  certificates,  and  that  it  might  properly  depute 
this  work  to  a  committee,  which  was  what  our  fathers 
proposed  in  1800,  and  which  they  then  called  a  grand 
committee.  But  here  again  the  idea  of  a  canvass  of  votes 
by  Congress  vitiates  Conkling's  argument.  The  commit- 
tee or  commission  were  to  report  back  to  the  Houses,  and 
were,  in  effect,  to  do  what  a  referee  or  master  in  chancery 
would  do  for  a  court  which  reserved  for  itself  final  deter- 
mination over  the  subject.  ** The  two  Houses  retain  the 
whole  thing  to  the  end  absolutely  in  their  own  hands." 
Precisely  the  opposite  of  this  is  what  the  bill  effected. 
Conkling  seems  to  have  entertained  the  view  that  the 
commission  might  go  behind  the  returns  and  inquire  into 
the  popular  election  for  electors,  for  he  quoted  from  a 
speech  he  had  made  in  the  Senate  in  1873,  in  which  he 
said: 

"  I  see  no  reason  to  doubt  that  any  State  having  provided  a 
popular  election  as  the  mode  of  appointing  electors,  and  it 
being  alleged  that  no  such  election  has  been  held,  or  that  the 
election  was  a  mere  mockery  or  mob,  violative  not  only  of  the 
laws  [of  Louisiana]  but  ...  of  the  supreme  law  of  the 
United  States,  we  are  within  the  scope  of  our  power  in  send- 
ing a  committee  to  find  whether  the  allegation  be  fiction  or 
fact." 

Justice  to  this  speech  cannot  be  done  by  citations;  it 
may  be  ranked  as  one  of  the  ablest  of  Conkling's  addresses 
in  Congress.  It  had  the  effect  of  convincing  many  Re- 
publicans in  either  House  and  throughout  the  country 


Electoral  Commission  Bill  of  1877     123 

that  the  president  of  the  Senate  did  not  possess  the 
power  to  count  the  vote;  that  Conkling  was  not  re- 
linquishing any  ground  upon  which  the  party  could 
safely  stand,  and  that  the  measure  of  pacification,  the 
enactment  of  which  he  advocated,  was  necessary  to  solve 
a  debatable  election.  Nor  was  concession  made  by 
Republican  Senators  alone.  Bayard,  in  supporting  the 
bill,  argued  that  if  either  House  might  reject  the  return 
from  a  State,  which  had  been  the  practice  under  the  joint 
rule,  it  was  in  the  power  of  either  to  throw  the  election 
into  the  House  of  Representatives,  which  was  under  the 
control  of  the  Democrats.  He  advocated  the  measure  in 
the  interest  of  a  peaceful  solution,  believing  the  act  to  be 
not  unconstitutional. 

Thurman  also  supported  the  bill,  which,  he  asserted, 
was  not  novel,  which  '.'does  not  go  outside  of  the  Con- 
stitution, unless  the  opinions  of  the  most  eminent  men 
who  have  lived  since  the  Government  was  formed  are 
worthy  of  no  regard."  No  single  instance  had  occurred, 
he  said,  in  which  the  president  of  the  Senate  ever  decided 
a  disputed  question  in  respect  to  an  electoral  vote.  In 
answer  to  those  Democrats  who  wished  a  bill  that  ex- 
plicitly defined  the  power  of  the  two  Houses,  he  declared 
that  to  frame  a  bill  upon  the  idea  of  defining,  by  law, 
what  the  Constitution  means,  would  be  a  simple  impos- 
sibility. He  adverted  to  the  fact  that  Jefferson  in  1800 
entertained  the  view  that  the  Houses  act  as  one  body 
while  in  a  joint  convention.  He  also  appealed  to  Van 
Buren's  bill  of  1824,  reminding  the  Senate  that  it  had 
been  approved  in  the  House  of  Representatives,  without 
the  change  of  a  letter,  by  so  eminent  a  constitutional  ex- 
pounder as  Daniel  Webster,  and  ended  by  arguing  that 
the  bill  was  constitutional,  inasmuch  as  it  created  a  com- 
mission as  a  tribunal  merely  to  investigate  and  report. 

Morrill,  who,  nevertheless,  voted  for  the  bill,  declared 
that  fourteen  fifteenths  of  the  commission  were  to  be 


124  The  Electoral  System 

partisan,  yet  one  fifteenth  part  was  expected  to  be  true 
and  unbiased;  *'but  for  this,"  he  said,  "the  bill  would 
nowhere  find  support." 

Morton,  in  replying  to  the  supporters  of  the  measure, 
disclaimed  all  fear  that  violence  was  to  be  apprehended  if 
it  should  not  become  law;  "the  people  would  not  stand 
for  it."  Recalled  attention  to  the  historical  fact  that 
the  president  of  the  Senate,  in  1789,  was  authorized  to 
open  and  count  the  vote  by  the  resolution  submitted 
with  the  Constitution  to  the  people  of  the  several  States. 
John  Langdon  did  so  in  1789,  and  himself  issued  a  cer- 
tificate of  election  to  General  Washington  over  his  own 
signature,  in  which  he  declared  that  at  a  certain  day  and 
in  a  certain  place  he  had  opened  the  certificates  and 
counted  the  votes.  Nine  successive  presidents  of  the 
Senate,  from  1789  to  1825  inclusive,  issued  certificates  of 
election  to  the  President-elect,  "in  which  they  solemnly 
declared  they  had  opened  the  certificates  and  counted  all 
the  votes."  The  practice  then  changed;  certificates  of 
election  were  no  longer  issued,  but  a  joint  committee  of 
the  two  Houses  notified  the  President  of  his  election. 
Congress  might  have  authority  to  go  behind  the  certificate 
of  a  governor  of  a  State,  for  Congress  had  by  enactment 
provided  for  such  certificates,  but  it  could  not  go  behind 
the  certificate  of  the  returning  board.  Here  is  fore- 
shadowed the  opinion  which  Morton  subsequently  held 
as  a  member  of  the  commission.  "The  returning  boards 
or  canvassing  officers  are  appointed  by  the  laws  of  the 
States  to  determine  the  result  of  the  election.  That  is 
the  binding  authority  behind  which  the  Congress  of  the 
United  States  cannot  go."  Morton  had  always  consist- 
ently held  this  opinion,  and  he  declared  such  to  have 
been  his  view  in  1873  : 

"  I  took  the  ground  from  first  to  last  that  Congress  had  no 
right  to  go  behind  the  decision  of  the  returning  board  in 


Electoral  Commission  Bill  of  1877     ^^5 

Louisiana.  .  .  .  That  was  my  position  then,  as  it  is  my 
position  now.  I  believe  it  is  a  vital  point  in  the  constitutional 
doctrine  of  our  country,  and  I  believe  that  this  very  bill  that 
I  am  opposing  in  vain  to-night  will  violate,  and  I  believe  is 
intended  to  violate,  that  doctrine." 

Edmunds  had  said  that  neither  the  president  of  the  Sen- 
ate nor  the  two  Houses  had  the  right  to  count  a  vote  in 
the  absence  of  legislation,  but,  said  Morton,  if  this  were 
so  it  would  follow  that  for  seventy-five  years  the  votes 
were  counted  without  authority  of  law;  "I  do  not  be- 
lieve it."  If  the  powers  of  the  Electoral  Commission 
were  judicial,  such  powers  could  not  be  delegated  to  it 
under  the  Constitution.  He  truthfully  asserted  that  if 
the  bill  had,  in  terms,  deprived  the  commission  of  power 
to  go  behind  the  returning  boards  of  the  several  States, 
no  Democratic  member  of  either  House  would  vote  for 
it.  The  Constitution  declared  that  the  count  should  take 
place  in  the  presence  of  the  two  Houses ;  but  what  was 
done  in  the  presence  of  the  commission  was  not  in  the 
presence  of  the  two  Houses,  and  the  commission  was  for 
that  reason  an  unconstitutional  body. 

Blaine  was  unwilling  to  approve  of  the  measure.  He 
had  favored  the  Edmunds  resolution  of  a  few  weeks  pre- 
ceding for  an  amendment  to  the  Constitution,  to  vest  the 
power  of  deciding  upon  disputed  returns  in  the  Supreme 
Court  of  the  United  States ;  and  he  urged  the  Senate  not 
to  close  its  session  without  carefully  maturing  and  sub- 
mitting to  the  States  a  constitutional  amendment  which 
would  remove  as  far  as  possible  all  embarrassment  in  the 
future. 

Whyte  supported  the  bill,  although  he  would  decline 
to  vote  for  it  if  it  were  to  be  a  permanent  measure;  in 
fact,  a  bill  of  this  tenor  would  never  have  passed  as  a 
permanent  measure.  Whyte  coincided  with  Clay  and 
Barbour  in  the  opinion  that  here  was  a  casus  omissus  in 


126  The  Electoral  System 

the  Constitution.  This  modern  difficulty  had  never  been 
contemplated  by  its  framers.  He  said,  addressing  the 
president  of  the  Senate  : 

"  They  meant  that  you,  the  highest  officer  next  to  the  Presi- 
dent of  the  United  States,  were  to  exercise  the  purely  minis- 
terial power  of  counting  the  vote,  and  left  it  to  the  House  of 
Representatives,  if  you  counted  it  falsely,  and  pronounced  a 
man  elected  who  had  not  a  majority  of  the  votes  cast,  imme- 
diately to  proceed  and  exercise  their  jurisdiction  in  choosing  a 
President  over  the  man  you  had  falsely  counted  in." 

He  was  undoubtedly  right  that  the  convention  of  1787 
intended  to  confer  upon  the  president  of  the  Senate  a 
purely  ministerial  power;  but  assuming  that  the  Electoral 
Commission  bill  had  not  been  enacted,  that  Mr.  Ferry  as 
president  of  the  Senate  had  undertaken  to  count  the 
Hayes  certificates  from  the  doubtful  States,  and  declared 
Mr.  Hayes  President  of  the  United  States,  the  House  of 
Representatives,  under  Whyte's  view,  might  have  repu- 
diated his  action  on  the  theory  that  he  had  falsely  counted 
votes,  and  might  have  proceeded  to  exercise  its  authority 
and  thereupon  have  chosen  Mr.  Tilden.  No  escape  from 
the  dilemma  seemed  possible  without  the  enactment  of 
this  extra-constitutional  measure. 

The  session  of  January  24th  was  an  all-night  session. 
Debate  ceased  about  seven  in  the  morning  of  January 
25th,  and  the  Senate  adjourned  to  the  26th,  when  it 
passed  the  bill  by  a  vote  of  47  yeas  and  17  nays,  ten 
members  being  absent.  But  one  Democratic  Senator 
voted  in  opposition. 

The  debate  in  the  House  of  Representatives  was  a  con- 
fusing babel  of  tongues,  but  the  dominant  tone  strongly 
favored  the  joint  committee's  bill.  On  January  25th 
McCrary,  as  a  member  of  that  committee,  initiated  the 
discussion  with  an  argument  that  the  power  to  count  the 
electoral  vote  was  lodged  in  the  two  Houses  concurrently. 


Electoral  Commission  Bill  of  1877     127 

There  was,  he  said,  a  widespread,  honest  difference  of 
opinion,  of  long  standing,  as  to  the  authority  to  decide 
upon  disputed  votes.  Among  believers  in  the  power  of 
the  president  of  the  Senate,  he  cited  Senator  Thompson, 
of  Kentucky,  and  Senator  Stuart,  of  Michigan,  in  1857; 
Shellabarger,  of  Ohio,  in  1869,  Thomas  F.  Bayard,  of 
Delaware,  Whyte,  of  Maryland,  and  Stevenson,  of  Ken- 
tucky, in  1876,  and  the  somewhat  doubtful  opinion  of 
Chancellor  Kent ;  and  among  believers  in  the  powers  of 
the  two  Houses,  J.  J.  Crittenden,  of  Kentucky,  and 
Pugh,  of  Ohio,  in  1857;  Colfax,  of  Indiana,  in  1869; 
Schenck,  of  Ohio,  Boutwell,  of  Massachusetts,  Thurman, 
of  Ohio,  Christiancy,  of  Michigan,  Frelinghuysen,  of  New 
Jersey,  and  Dawes,  of  Massachusetts.  He  confuted  the 
theory  that  one  House  alone  was  the  depositary  of  the 
power,  argued  that  in  this  confusion  of  opinion  the  sole 
way  out  of  the  difficulty  was  to  enact  the  bill  into  law, 
and,  in  support  of  the  constitutionality  of  the  measure, 
urged  reasons  similar  to  those  advanced  in  the  Senate. 

Eppa  Hunton,  of  Virginia,  followed  McCrary  in  similar 
strain.  The  joint  resolution,  which  had  been  approved 
by  Lincoln,  and  the  twenty-second  joint  rule,  which  had 
been  applied  in  1865,  1869,  and  1873,  were,  he  declared, 
quasi  legislation.  Each  served  in  its  time  to  count  for 
some  particular  occasion.  "The  present  bill  only  pro- 
vides for  this  occasion," — which  was  its  chief  vice.  The 
constitutionality  of  the  measure  could  not  be  affected 
whether  the  provision  covering  the  count  were  controlled 
by  concurrent  or  joint  resolution,  joint  rule,  or  by  bill. 
George  F.  Hoar,  of  Massachusetts,  also  spoke  in  its  favor, 
declaring  it  not  a  compromise  bill.  "There  is  not  a  drop 
of  compromise  in  it,"  as  it  allows  every  argument  of 
either  party  to  be  presented  to  a  tribunal  so  constituted 
as  to  ensure  a  righteous  decision,  "so  far  as  the  lot  of 
humanity  will  admit." 

Hale,  of  Maine,  was  against  the  measure.     A  single 


128  The  Electoral  System 

man,  he  said,  the  fifteenth  commissioner,  was  to  decide 
this  election.  He  believed  in  the  power  of  the  president 
of  the  Senate  to  count ;  as  long  as  one  man  was  to  count, 
he  saw  no  propriety  in  substituting  the  fifteenth  commis- 
sioner for  the  constitutional  authority.  He  had  no  fear 
of  trusting  the  president  of  the  Senate,  and  did  not  be- 
lieve in  invading  the  judiciary  to  take  a  man  from  it  to 
perform  such  an  unconstitutional  function.  Hewitt,  of 
New  York,  unnecessarily  lauded  the  bill.  "The  very 
spirit  and  essence,  the  pineal  gland  of  the  Constitution,  is 
in  the  proposed  measure."  He  declared  it  to  contain  the 
genius  of  Magna  Charta,  the  great  petition  of  right,  the 
settlement  of  1688,  the  Declaration  of  Independence. 
Springer,  of  Illinois,  made  an  elaborate  and  forcible  argu- 
ment for  the  bill.  Reviewing  the  proceedings  in  the 
convention  of  1787  he  showed  how  the  clause  as  to  the 
counting  of  the  votes,  reported  by  Brearley  on  Septem- 
ber 4th,  provided  that  the  president  of  the  Senate  should 
open  the  votes  in  the  Senate  alone  and  that  if  there  were 
no  election  by  the  electors,  the  Senate  should  be  em- 
powered to  elect.  These  provisions  were  criticised  as 
giving  the  Senate  too  much  power  in  the  selection  of 
President,  and  the  clause  for  that  reason  was  so  modified 
as  to  require  the  opening  of  the  certificates  in  the  presence 
of  the  two  Houses.  The  Morton  bill,  introduced  in  the 
last  session  of  the  Forty-third  Congress  and  passed  in 
the  first  session  of  the  existing  one,  Springer  declared, 
was  subjected  in  the  Senate  to  a  discussion  most  exhaust- 
ive and  as  able  as  was  ever  given  to  any  measure  in 
Congress.  "The  action  of  Congress  on  the  Ross  bill  of 
1800,  the  Van  Buren  bill  of  1824,  and  the  Morton  bill  of 
1875-6  constitute  precedents  fully  establishing  the 
authority  of  Congress  to  pass  the  first  section  of  the 
joint  committee's  bill," — in  relation  to  single  returns. 
The  precedent,  he  continued,  went  even  further  and 
justified  the  provision  for  double  returns.     Here  was  no 


Electoral  Commission  Bill  of  1877     129 

improper  delegation  of  power,  inasmuch  as  the  com- 
mission was  merely  to  make  a  prima  facie  case  for  the 
two  Houses  to  act  upon.  The  counting  of  the  votes 
would  thus  in  the  end  be  the  act  of  the  two  Houses. 

The  argument  of  Garfield  against  the  bill  is  in  many 
respects  one  of  the  ablest  addresses  delivered  at  that  ses- 
sion of  the  Houses.  He  brushed  aside  all  fears  of  civil 
war  if  the  measure  were  not  made  law,  and  inquired  what 
would  be  its  effect  upon  our  institutions.  An  answer 
could  not  be  made  without  a  brief  reference  to  history. 
The  men  who  framed  the  Constitution  were  deeply  versed 
in  the  political  philosophy  of  their  day  and  had  learned 
from  Montesquieu,  Locke,  F^nelon,  and  other  great  teach- 
ers that  liberty  is  impossible  without  a  clear  and  distinct 
separation  of  the  three  powers  of  government.  The 
fathers  used  the  utmost  precaution  to  hedge  the  electoral 
system  about  with  every  conceivable  protection  against 
the  interference  or  control  of  Congress.  Recalling  the 
provisions  of  the  Constitution  regarding  electors,  he  de- 
clared that  ** within  these  simple,  plain  limitations,  the 
electoral  colleges  are  absolutely  independent  of  the  States 
and  of  Congress.  .  .  .  These  colleges  are  none  the  less 
sovereign  and  independent  because  they  exist  only  for  a 
day."  Analyzing  the  clause  providing  for  the  opening 
of  the  certificates,  which  ends  with  the  words  "the  votes 
shall  then  be  counted,"  he  said:  "Here  the  language 
changes  from  the  active  to  the  passive  voice,  from  the 
personal  to  the  impersonal ;  to  the  trusted  custodian  of 
the  votes,  succeeds  the  impersonality  of  arithmetic." 
Comparing  the  bill  with  the  constitutional  plan,  he  de- 
clared that  it  assailed  and  overthrew  that  plan  to  its  very 
foundations. 

"  Coming  only  as  an  invited  guest  to  witness  a  grand  and 
imposing  ceremony,  this  bill  makes  Congress  the  chief  actor 
and   umpire   in  the  scene,   and,   under   cover   of   the   word. 


I30  The  Electoral  System 

*  count, '  proposes  to  take  command  of  every  step  in  the  pro- 
cess of  making  a  President.  .  .  .  Pass  this  bill,  and  the 
old  constitutional  safeguards  are  gone.  Congress  becomes  a 
grand  returning  board  from  this  day  forward     .     .     ." 

The  joint  rule  was  the  cause  of  most  of  our  entangle- 
ments, and  he  unconsciously  arraigned  his  party  for 
originating  that  rule. 

**At  the  last  session  of  Congress,  every  Senator,  without 
distinction  of  party,  voted  to  declare  it  unwarranted  by  the 
Constitution.  .  .  .  The  plain  declaration  of  the  first  sec- 
tion [of  this  bill]  is  that  Congress  may,  at  its  discretion,  for 
any  reason,  good  or  bad,  or  for  no  reason,  stifle  the  vote  of  a 
State.  The  Constitution  commands  that  the  votes  shall  be 
■counted;  the  bill  declares  that  the  votes  may  be  rejected.  It 
is  a  monstrous  assumption,  a  reckless  usurpation  of  power." 

Congress  had  no  more  authority  than  Great  Britain  to 
say  that  a  State  shall  not  vote.  By  the  Constitution, 
the  agency  of  Congress  was  narrowed  down  to  a  mere 
shadow,  to  a  presence.  It  is  said  that  the  words  "in  the 
presence"  of  the  two  Houses  imply  that  they  are  to 
take  some  part.  The  Constitution  never  intended  the 
two  Houses  to  count  the  votes.  **  Formulate  that  con- 
struction in  definite  words"  and  the  Constitution  "will 
read :  'In  the  presence  of  the  two  Houses,  the  votes  shall 
be  counted  by  the  two  Houses.'  That  is,  they  shall 
count  the  votes  in  their  own  presence.  Let  us  not  charge 
the  framers  of  the  Constitution  with  such  stupid  tautol- 
ogy." Congress  might  legislate  upon  the  subject  wher- 
ever the  Constitution  had  made  legislation  possible.  As 
to  the  second  section  of  the  measure,  empowering  the 
commission,  in  the  first  instance,  to  determine  upon  dis- 
puted dual  returns,  he  argued  that  here  was  an  unlawful 
delegation  of  power.  If  it  were  a  delegation  of  legislative 
power,  it  was  clearly  in  conflict  with  the  Constitution ;  if 


Electoral  Commission  Bill  of  1877     ^3^ 

the  power  were  executive  or  judicial,  then  the  members 
of  the  commission  were  officers  of  the  United  States,  but 
were  not  appointed  as  the  Constitution  requires. 

Mills,  of  Texas,  was  also  among  the  dissenters.  Under 
the  terms  of  the  bill,  the  award  of  the  joint  commission 
would  require  the  concurrence  of  both  Houses  to  reject 
it,  which  was  tantamount  to  declaring  that  the  assent  of 
but  one  House  would  sustain  it,  thereby  allowing  one 
House  to  count  the  votes  and  declare  the  President 
elected, — which  was  what  actually  happened.  "No  man 
can  legally  be  the  President  of  the  United  States,  unless 
both  Houses  have  concurred  in  declaring  him  elected,  or 
both  Houses  have  concurred  in  declaring  no  one  is  elected, 
and  the  House  elects." 

Lamar,  of  Louisiana,  combated  Mills.  Under  the 
Constitution  both  Houses  were  present  to  witness  the 
count.  If  they  should  retire  and  declare  they  had  wit- 
nessed not  the  count,  "but  a  fraud  and  a  lie,"  the  whole 
proceeding  would  be  void.  The  two  Houses  testify 
whether  the  right  vote  was  counted.  This  implies  power 
to  discriminate  between  legal  and  illegal  votes.  The  bill 
devised  a  method  by  which,  in  case  of  double  returns,  the 
Senate  and  the  House  might  ascertain  the  legal  vote, 
which  ought  to  be  counted.  Such  a  measure  was  within 
the  residuary  powers  of  Congress. 

Baker,  of  Indiana,  another  opponent  of  the  bill,  cor- 
rectly said  that  it  had  never  entered  the  minds  of  the 
sages  of  the  Constitution  that  more  than  one  electoral 
college  would  claim  to  be  appointed  in  any  State,  nor 
that  two  sets  of  certificates  from  rival  electoral  colleges 
would  ever  be  transmitted  to  the  president  of  the  Senate. 
In  the  eyes  of  our  fathers  the  count  was  never  expected 
to  involve  an  inquiry.  He  denied  the  power  of  Congress 
to  delegate  any  of  its  functions,  whatever  they  were,  to 
a  commission.  The  commission  was  not  fitly  constituted 
for  the  safe  settlement  of  the  matters  confided  to  it  for 


132  The  Electoral  System 

decision.  Its  jurisdiction  was  not  defined  with  sufficient 
precision  nor  were  the  modes  of  its  procedure  accurately 
prescribed. 

Watterson,  of  Kentucky,  supported  the  bill,  declaring 
that  Senator  Edmunds  had  made  it  clear  that  the  bill  was 
constitutional  and  that  he  accepted  and  adopted  Ed- 
munds' view  without  reservation.  Bland,  of  Mississippi, 
hoped  that  the  bill  would  secure  substantial  justice,  while 
Lapham  and  Townsend,  of  New  York,  both  disapproved 
of  it,  believing  that  it  deprived  the  president  of  the 
Senate  of  his  immemorial  power.  Harrison,  in  depicting 
the  crisis  which  would  arise  if  the  president  of  the  Senate 
should  declare  Hayes  President  and  the  House  Tilden, 
said  no  man  who  lived  could  predict  what  would  happen 
in  such  a  contingency.  He  denied  the  power  of  the 
president  of  the  Senate  to  count,  and  concluded  by  say- 
ing: "With  the  lights  before  me  I  hold  that  the  Consti- 
tution requires  a  law  to  put  this  clause  into  effect."  But 
special  legislation,  such  as  the  Electoral  Commission  act, 
was  not  the  sort  of  legislation  alluded  to  by  Chancellor 
Kent  in  his  oft-quoted  dictum. 

Knott  claimed  that  there  could  be  no  controversy  over 
the  question  of  the  right  of  Congress  to  count,  for  the 
Houses  undoubtedly  possessed  the  power  to  decide  upon 
disputed  votes,  but  they  had  no  power  to  delegate 
their  functions  to  a  commission.  Conceding  the  claimed 
authority  of  the  president  of  the  Senate,  that  officer 
could  not  be  stripped  of  his  constitutional  prerogative; 
if  the  House  had  the  power,  it,  in  turn,  could  not  re- 
nounce it.  The  residuary  clause  did  not  confer  authority 
to  create  such  a  tribunal.  Congress,  under  pretence  of 
aiding  the  President  in  an  emergency,  might  strip  him  of 
his  powers  as  commander-in-chief  and  transfer  them  to 
a  commission.  He  reiterated  the  argument,  which  had 
several  times  been  heard  in  the  Senate,  that  the  bill  was 
unconstitutional  because  under  its  terms  the  votes  were 


Electoral  Commission  Bill  of  1877     133 

not  to  be  counted  in  the  presence  of  the  two  Houses. 
Carr,  in  an  elaborate  address,  expressed  his  hope  that  the 
judges  would  hold  themselves  aloof  from  the  commission. 
Hardenburgh  and  Lawrence,  of  Ohio,  also  opposed. 

The  vote,  after  a  great  volume  of  discussion,  was 
reached  on  January  26th,  when  the  bill  was  sustained  by 
191  yeas  to  86  nays,  14  not  voting.' 

Debate  in  both  Houses  had  been  prolonged  to  tedious- 
ness,  but  the  country  remained  tranquil  and  patient, 
realizing  that  the  discussion  involved  the  meaning  of  a 
transcendently  important  constitutional  provision,  touch- 
ing the  succession  to  the  presidency.  Argument  was  as 
full  and  exhaustive  as  if  the  subject  had  not  been  the 
theme  of  perennial  controversy.  The  law  which  was  the 
fruit  of  the  joint  committee's  efforts  is  itself  a  legislative 
declaration  of  the  doubt  of  Congress  as  to  its  own  author- 
ity. The  act,  by  its  own  terms,  in  its  provision  referring 
double  returns  to  the  consideration  of  the  Electoral  Com- 
mission, concedes  its  own  questionable  constitutionality, 
since  it  purports  to  clothe  the  commission  "with  the 
same  powers,  if  any,  now  possessed  for  that  purpose  by 
the  two  Houses  acting  separately  or  together."  If  Con- 
gress lacked  power,  it  could  not  constitutionally  legislate 
upon  the  subject  at  all,  nor  confer  any  authority  upon  a 
commission.  The  outcome  of  practically  one  hundred 
years  of  discussion  of  a  brief  clause  of  the  Constitu- 
tion was  a  law  confessedly  temporary  in  its  operation, 
in  which  the  doubts  of  a  century  are  crystallized  into 
statutory  form.     It  is  hardly  probable  that  in  the  whole 

'  Blaine,  in  his  Twenty  Years  of  Congress,  analyzes  the  vote  on  the  Elec- 
toral bill  as  follows  : 

"  In  the  Senate,  26  Democrats  voted  for  the  bill  and  i  against  it. 

"  In  the  Senate,  21  Republicans  voted  for  the  bill  and  16  against  it. 

"  In  the  House,  160  Democrats  voted  for  the  bill  and  17  against  it. 

"  In  the  House,  31  Republicans  voted  for  the  bill  and  69  against  it. 

"  In  the  two  Houses  jointly,  186  Democrats  voted  for  the  Electoral  bill 
and  iS  against  it ;  while  52  Republicans  voted  for  the  bill  and  75  against  it." 


134  The  Electoral  System 

range  of  congressional  legislation  a  parallel  utterance  can 
be  found.  The  act  was  in  every  sense  a  compromise, 
despite  Conkling  and  Hoar  to  the  contrary.  It  was  a 
renunciation  by  Congress  of  the  power  with  which  it 
claimed  to  be  constitutionally  vested, — an  evasion  of 
arrogated  authority  worse  than  "alternative  counting," 
a  peace-at-any-price  measure.  It  referred  the  disputed 
returns  to  a  commission  of  extra-constitutional  origin; 
and  while  nominally  retaining  plenary  authority  over  the 
commission's  report,  both  Houses  deliberately  tied  their 
own  hands  so  as  to  compel  approval  of  that  report,  be- 
cause it  was  almost  scientifically  demonstrable  that  the 
two  Houses  would  not  agree  to  overthrow  the  commis- 
sion's verdict.  It  was  the  case  of  a  plaintiff  and  defend- 
ant assenting  to  a  reference  or  arbitration,  and  agreeing 
that  the  decision  of  the  referee  or  the  award  of  the 
umpire  should  stand  unless  both  contestants  should 
acquiesce  in  setting  it  aside.  A  bill  referring  the  dis- 
cordant electoral  certificates  to  a  commission  for  its 
report,  but  expressly  reserving  all  the  constitutional 
powers,  if  any,  of  the  two  Houses,  to  approve  or  over- 
rule the  report,  would  have  incurred  certain  defeat. 
Nothing  would  content  Congress  except  a  law  that  ren- 
dered a  reversal  of  the  commission  practically  impossible 
unless  one  party  or  the  other  abandoned  its  pretensions. 
There  is  but  one  explanation  of  such  remarkable  legisla- 
tion,— not  consolatory  to  the  dignity  of  the  nation, — 
which  is,  that  the  antagonistic  parties  agreed  upon  this 
mode  of  arbitrament  solely  because  each  had  deluded 
itself  with  the  belief  that  by  the  creation  of  this  commis- 
sion it  was  sure  to  win  the  prize. 

The  bill  received  executive  approval  on  January  29, 
1877;  and  on  January  30th  both  the  Senate  and  the 
House  viva  voce  named  their  respective  representatives 
upon  the  commission.  The  Senate  appointed  George 
F.  Edmunds,  Oliver  P.  Morton,  Frederick  T.  Frelinghuy- 

/ 


Electoral  Commission  Bill  of  1877      135 

sen,  Thomas  F.  Bayard,  and  Allen  G.  Thurman,  as  the 
senatorial  members  of  the  commission;  and  the  House 
designated  from  its  body  Henry  B.  Payne,  Eppa  Hun- 
ton,  Josiah  G.  Abbott,  James  A.  Garfield,  and  George 
F.  Hoar.  It  is  almost  needless  to  add  that  three  of  the 
Senators  were  Republican  and  two  Democratic ;  and 
that  from  the  House  came  two  Republicans  and  three 
Democrats.  While  the  measure  was  under  consideration 
in  Congress,  the  common  assumption  appears  to  have 
been  that  the  choice  of  the  four  justices  who  were  named 
in  the  bill  would  make  Justice  David  Davis,  who  had 
been  nominated  to  the  Supreme  Court  by  President 
Lincoln,  the  fifth  judicial  member.  The  first  blow  of 
fate  came  in  his  sudden  and  unexpected  election  by  the 
Illinois  Legislature,  by  a  Democratic  majority,  to  the 
senatorship  from  that  State,  as  the  successor  of  John  A. 
Logan,  on  the  afternoon  of  January  25th.  Judge  Davis* 
election  was  treated  as  rendering  him  ineligible  to  a  place 
upon  the  commission,  and  "the  four  judges"  '  unani- 
mously selected  Associate  Justice  Joseph  P.  Bradley  as 
the  fifth  justice  and  the  "fifteenth  member"  of  the  com- 
mission. Sherman's  "element  of  blind  chance"  seemed 
to  be  at  work  even  before  the  bill  had  become  law.' 

The  Electoral  Commission  was  organized  on  January 
31,  1877.  Without  impugning  the  good  faith  of  a  single 
member,  the  outcome  of  its  proceedings  might  have  been 
predicted. 

'  "  The  four  judges  "  were  Clifford,  Field,  Miller,  and  vStrong. 

^  "  The  Electoral  Commission  was,  in  a  large  degree,  the  creation  and 
offspring  of  the  Democratic  party  ;  its  leading  members  uniting  for  that 
purpose  with  patriotic  Republicans  willing  to  surrender  a  political  advan- 
tage to  secure  the  peace  and  tranquillity  of  the  country,  seriously  imperilled, 
as  they  believed,  by  threats  of  Democratic  leaders,  who  asserted  that  if  the 
Republican  candidates  should  be  declared  elected  by  the  president  of  the 
Senate,  the  House  of  Representatives  would  proceed  to  elect,  and  forcibly 
install,  Tilden  as  President."— 125  JV.  A.  A".,  198,  E.  W.  Stoughton. 


1 


CHAPTER  VI 

THE    CASE   OF  FLORIDA   BEFORE   THE    ELECTORAL  COM- 
MISSION 

IT  was  shown  in  the  preceding  chapter  that  the  Electoral 
Commission  law  failed  to  define  the  powers  of  the 
commission.  Congress  vested,  or  attempted  to  vest,  the 
commission  with  the  powers,  if  any,  of  the  two  Houses, 
acting  separately  or  together,  to  decide  upon  conflicting 
returns.  All  amendments  offered  to  the  bill  in  order  to 
insure  explicit  delimitation  of  authority  were  voted  down. 
So  far  from  bestowing  unmistakable  jurisdiction  upon  the 
commission,  Congress  was  unable  to  make  any  clear 
affirmation  as  to  the  extent  of  its  own  authority,  and  at- 
tempted none.  Upon  one  proposition  the  two  Houses 
by  a  substantial  majority  were  in  accord — that  the  presi- 
dent of  the  Senate  had  no  constitutional  power  to  count 
the  votes;  yet,  by  the  irony  of  fate,  the  elaborate 
machinery  invented  to  depose  him,  and  confide  the  func- 
tion to  Congress,  resulted  in  exactly  such  a  decision  as 
might  have  been  expected  had  the  president  of  the  Sen- 
ate, in  the  presence  of  the  two  Houses  as  witnesses,  dis- 
charged this  duty.  That  official  in  all  probability  would 
have  declared  the  first  certificate  received  from  Florida, 
Louisiana,  or  South  Carolina,  purporting  to  come  under 
the  seal  of  the  State  and  the  authentication  of  its  gover- 
nor, the  valid  return  in  each  instance;  which  was  precisely 
the  decision  of  the  commission  by  a  vote  of  8  to  7.  The 
only  circumstance  to  be  pleaded  in  palliation  of  the  Elec- 

136 


The  Case  of  Florida  137 

toral  Commission  law  is  that  the  decision  of  the  presi- 
dent of  the  Senate  might  not  have  been  accepted  by  both 
parties.  History  thus  presents  the  anomaly  of  the 
acquiescence  by  a  free  and  intelligent  people  in  an  extra- 
constitutional  device  for  settling  a  disputed  presidential 
succession,  whereas  the  employment  of  what  was  prob- 
ably intended  to  be  the  constitutional  method,  the 
method  proposed  in  the  resolution  of  the  convention  of 
1787,  adopted  in  1789,  and  apparently  approved  for  years 
afterwards,  might  not  have  been  peacefully  accepted. 

Some  reference  to  the  subject  of  returning  boards 
should  precede  an  account  of  the  cases  presented  to  the 
Electoral  Commission.  While  the  laws  of  the  States 
varied  widely,  each  State  had  some  kind  of  canvassing 
or  returning  board,  by  which  the  returns  sent  from  the 
various  districts  or  counties  were  canvassed  and  the  result 
of  the  election  was  authoritatively  declared.  In  Oregon 
the  functions  of  a  canvassing  board,  in  the  opinion  of  a 
majority  of  the  commission,  were  concentrated  in  the 
Secretary  of  State  of  that  State;  in  other  States  these 
duties  were  reposed  in  several  designated  State  officers. 
All  such  canvassing  boards,  however  constituted,  ordi- 
narily discharge  ministerial  functions  only.  As  Judge 
Cooley  says,  they  are  "not  vested  with  judicial  powers 
to  correct  errors  and  mistakes  that  may  have  occurred 
with  any  officer  who  preceded  them  in  the  performance 
of  any  duty  connected  with  the  election,  or  to  pass  upon 
any  disputed  fact  which  may  decide  the  result."  But  in 
1876,  in  at  least  three  States,  it  was  claimed  that  a  broader 
authority  had  been  given  by  legislation  to  the  State  can- 
vassing or  returning  board,  and  the  Supreme  Court  of 
one  of  those  States,  Louisiana,  prior  to  the  election  of 
that  year,  had  sustained  as  constitutional  the  extraordi- 
nary grant  of  authority  to  the  board,  in  certain  circum- 
stances, to  exclude  returns.  In  Florida,  as  will  hereafter 
be  seen,  the  highest  tribunal  of  the  State,  in  the  decision 


13^  The  Electoral  System 

of  a  suit  between  rival  candidates  for  the  governorship, 
held  such  a  judicial  delegation  of  power  to  a  returning 
board  to  be  unconstitutional. 

The  Florida  statute  of  February  27,  1872,  constituted 
the  Secretary  of  State,  Attorney-General,  Comptroller  of 
Public  Accounts,  or  any  two  of  them,  together  with  any 
other  member  of  the  Cabinet  designated  by  them,  a 
board  to  canvass  the  returns  of  the  elections,  and  deter- 
mine and  declare  who  had  been  elected  State  officers  and 
presidential  electors.  The  statute  provided  that  if  any 
returns  should  be  shown  or  should  appear  to  be  so  irregu- 
lar, false,  or  fraudulent  that  the  board  should  be  unable 
to  determine  the  true  vote,  the  board  should  so  certify 
and  should  not  include  such  return  in  its  determination 
and  declaration ;  and  the  Secretary  of  State  was  required 
to  preserve  on  file  in  his  ofifice  these  returns,  with  all 
documents  received  by  him  or  the  canvassing  board. 
Under  this  statute,  the  returns  of  the  election  for  presi- 
dential electors  in  Florida  were  canvassed  in  1876.  On 
December  6,  1876,  the  day  for  the  electors  to  vote,  the 
canvassing  board  certified  that  Humphreys,  Pearce, 
Holden,  and  Long  had  been  appointed  electors  and  on 
the  same  day  the  governor,  Marcellus  L.  Stearns,  issued 
them  a  certificate  as  prescribed  by  the  Act  of  Congress 
of  1792.  They  met  together  later  in  the  day,  balloted 
and  transmitted  to  Washington  a  properly  certified  re- 
turn showing  that  they  had  voted  for  Hayes  for  President 
and  for  Wheeler  for  Vice-President.  Likewise,  on  De- 
cember 6th,  four  Democrats,  named  Call,  Yonge,  Hilton, 
and  Bullock,  claiming  to  be  electors,  met,  cast  their 
ballots  for  Tilden  for  President  and  Hendricks  for  Vice- 
President,  and  sent  an  appropriate  certificate  to  Wash- 
ington. By  that  certificate  it  further  appeared  that, 
believing  themselves  to  have  been  chosen  electors  by 
popular  vote,  they  made  demand  upon  the  governor 
for  a  certificate,  which  was  refused.     As  O'Conor,  one 


The  Case  of  Florida  139 

of  the  Democratic  counsel,  subsequently  stated  to  the 
Electoral  Commission, 

"  Every  form  prescribed  by  the  Constitution,  or  by  any  law- 
bearing  upon  the  subject,  was  equally  complied  with  by  each 
of  the  rival  electoral  colleges,  unless  there  be  a  difference  be- 
tween them  in  this:  The  certified  lists  provided  for  in  section 
136  of  the  Revised  Statutes  [Act  of  1792]  were,  as  to  the 
Tilden  electors,  certified  by  the  Attorney-General,  and  were, 
as  to  the  Hayes  electors,  certified  by  Mr.  Stearns,  then  Gov- 
ernor. All  this  appears  of  record  and  no  additional  evidence 
is  needed  in  respect  to  any  part  of  it." 

The  Democratic  candidate  for  the  governorship,  Drew, 
brought  suit  in  the  Supreme  Court  of  the  State  in  De- 
cember, 1876,  against  Stearns,  the  Republican  candidate 
for  re-election,  to  try  the  title  to  the  office,  and  this  suit 
resulted  in  a  judgment  directing  the  board  of  canvassers 
to  make  another  count  of  the  votes  for  governor  and 
State  officers,  rejecting  all  testimony  of  irregularity  and 
fraud,  except  such  as  might  appear  on  the  face  of  the 
returns.  A  proceeding  in  quo  warranto  had  also  been 
instituted  in  the  Circuit  Court  of  the  State,  in  the  second 
judicial  circuit,  by  the  Tilden  electors  against  the  Hayes 
electors,  to  test  the  title  to  the  electoral  office.  This 
suit  v^as  begun  on  December  6,  1876,  the  day  when  the 
electors  were  required  to  meet  to  vote,  but,  according  to 
Commissioner  Miller,  it  was  not  shown  whether  the  writ 
was  actually  served  before  the  vote  by  the  Hayes  electors 
or  afterwards.  This  quo  warranto  resulted,  on  January 
25,  1877,  in  a  decree  which  adjudged  that  the  Hayes 
electors  were  not,  on  December  6,  1876,  or  at  any  other 
time,  entitled  to  assume  or  exercise  the  functions  of 
electors,  but  were  mere  usurpers,  and  their  acts  illegal 
and  void,  and  that  the  Tilden  electors  had  been  duly 
appointed. 

After  the  Supreme  Court  in  the  Drew  case,  L  e,y  the 


I40  The  Electoral  System 

suit  by  Drew  against  Stearns,  had  given  a  construction 
to  the  election  law  and  had  held  that  the  canvassers  im- 
properly and  illegally  exercised  judicial  functions  in  re- 
jecting votes,  the  Legislature,  on  January  17,  1877, 
passed  a  law  to  correct  the  count,  entitled  "An  act  to 
provide  for  a  canvass  according  to  the  laws  of  the  State 
of  Florida,  as  interpreted  by  the  Supreme  Court,  of  the 
votes  for  electors  for  President  and  Vice-President,  cast 
at  the  election  held  November  7,  1876."  The  act  re- 
quired the  new  canvassing  board  to  recanvass  the  returns 
and  determine  and  declare  who  were  appointed  electors 
at  that  election,  as  shown  by  the  returns  on  file  in  the 
office  of  the  Secretary  of  State.  The  canvassers  made 
the  directed  canvass,  and  certified  that  the  Tilden  electors 
had  received  a  majority  of  the  votes.  Thereupon,  on 
January  26,  i87i,/the  Legislature  passed  an  act  declaring 
the  Tilden  electors  duly  chosen  and  appointed  and  en- 
titled to  exercise  the  powers  and  duties  of  the  office  of 
electors  on  December  7,  1876,  and  ratified  and  confirmed 
the  acts  of  the  Tilden  electors.  It  also  directed  the  new 
governor  to  certify  in  due  form,  in  conformity  with  the 
Act  of  Congress  of  1792,  the  lists  prepared  by  the  Tilden 
electors  and  to  transmit  the  same,  with  an  authentic  copy 
of  the  act  of  the  State  Legislature,  to  the  president  of 
the  Senate,  and  declared  such  lists  to  be  as  valid  and 
effectual  as  if  they  had  been  made,  delivered,  and  trans- 
mitted on  December  7,  1876,  and  further  declared  the 
Hayes  certificates  void.  It  also  required  the  governor 
to  cause  three  other  lists  of  the  names  of  the  Tilden  elec- 
tors to  be  made,  certified,  and  delivered  to  such  electors, 
and  required  them  to  meet  at  the  State  capital  and  make 
and  sign  three  additional  certificates  of  the  votes  given 
by  them  on  December  6,  1876,  one  list  of  electors  fur- 
nished by  the  governor  to  be  annexed  to  each;  and 
furthermore  required  that  these  three  certificates  should 
also  be  transmitted  as  prescribed  in  the  Act  of  Congress 


The  Case  of  Florida  141 

of  1792.  The  governor  and  the  Tilden  electors  obeyed 
the  new  law.  "None  of  these  proceedings,"  as  was  said 
by  Commissioner  Clifford,  "were  intended  to  choose  new 
electors,  but  merely  to  ascertain  who  were  elected  at  the 
antecedent  general  election." 

Early  in  the  session  of  Congress  which  commenced  on 
December  5,  1876,  the  House  of  Representatives  ap- 
pointed a  committee  of  investigation  to  ascertain  the 
facts  and  report  the  truth  as  to  who  had  been  elected 
electors  in  the  States  of  Florida,  Louisiana,  and  South 
Carolina.  The  committee,  proceeding  to  Florida,  took 
a  vast  mass  of  testimony,  which  it  returned,  with  its 
conclusions,  to  the  House  on  January  31,  1877.  The 
report  recommended  the  passage  by  the  House  of  a  reso- 
lution stating  that  the  Tilden  electors  had  been  fairly  and 
duly  chosen  and  declaring  the  votes  cast  by  them  for 
Tilden  and  Hendricks,  "the  legal  votes  of  Florida," 
to  "be  counted  as  such."  This  resolution  was  subse- 
quently adopted  by  the  House  by  a  vote  of  142  yeas  to 
82  nays.  While  allowance  must  be  made  for  the  excited 
state  of  public  feeling  at  the  time,  it  is  evident  that  the 
House  exceeded  its  prerogatives  in  passing  the  resolu- 
tion. The  count  of  the  electoral  vote  is  not  confided  by 
the  Constitution  to  the  House  of  Representatives,  but  is 
to  take  place  in  joint  session  of  the  Houses  when  the 
lists  have  been  opened.  The  action  of  the  House  was 
revolutionary.  A  sub-committee  on  privileges  and  elec- 
tions of  the  Senate,  after  investigating  the  Florida  case, 
made  a  report  adverse  in  its  conclusions  to  those  of  the 
House  committee,  but  the  report  was  never  adopted  by 
the  Senate. 

The  two  Houses,  on  January  31,  1877,  convened  in 
joint  meeting  to  count  the  electoral  vote.  On  the  same 
date  the  Electoral  Commission  met  and  organized  in  the 
Supreme  Court  room  at  the  capitol,  with  Justice  Clifford 
as  presiding  officer.     The  returns  from  the  States  were 


142  The  Electoral  System 

taken  up  by  the  two  Houses  in  alphabetical  order.  The 
first  case  which  arose  for  reference  to  the  commission  was 
that  of  Florida,  and  the  hearing  in  that  case  began  on 
February  2,  1877.  An  array  of  distinguished  counsel 
gathered  in  the  chamber  of  the  highest  tribunal  of  the 
nation  to  represent  the  Democratic  and  the  Republican 
candidates  for  the  presidency  and  vice-presidency  and 
to  advocate,  by  every  argument  which  learning  or  ingenu- 
ity could  furnish,  the  causes  of  their  respective  clients. 
Besides  legal  representatives  from  both  Houses  of  Con- 
gress, O'Conor,  of  New  York,  Black,  of  Pennsylvania, 
Merrick,  of  the  District  of  Columbia,  Green,  of  New 
Jersey,  Carpenter,  of  Wisconsin,  and  Hoadley,  of  Ohio, 
appeared  for  the  Democratic  side;  while  Evarts  and 
Edwin  W.  Stoughton,  of  New  York,  and  Stanley  Mat- 
thews and  Samuel  Shellabarger,  of  Ohio,  appeared  to 
support  the  Republican  cause.  A  hearing  more  impres- 
sive in  character  or  fraught  with  greater  consequences  has 
never  taken  place  in  that  celebrated  chamber,  the  scene 
of  many  notable  forensic  discussions. 
Mr.  O'Conor  truly  declared  the  cause 

"to  be  the  most  important  that  has  ever  been  presented  to 
any  official  authority  within  these  United  States.  ...  It 
is  brought  here  under  circumstances  that  give  absolute  assur- 
ance, as  far  as  absolute  assurance  can  exist  in  human  things, 
of  a  sound,  upright,  intelligible  decision  that  will  receive  the 
approval  of  all  just  and  reasonable  men.  The  great  occasion 
which  has  given  rise  to  the  construction  of  this  tribunal  has 
attracted  the  attention  of  every  enlightened  and  observing  in- 
dividual in  the  civihzed  world.  This  commission  acts  under 
that  observation.  The  conclusion  at  which  it  may  arrive 
must  necessarily  pass  into  history,  and,  from  the  deeply  inter- 
esting character,  in  all  their  aspects,  of  the  proceedings  had  and 
the  judgment  to  be  pronounced,  that  history  will  attract  the 
attention  of  students  and  men  of  culture  and  intelligence  as 
long  as  our  country  shall  be  remembered;  for  it  cannot  be 


The  Case  of  Florida  143 

supposed  that  a  question  will  ever  arise  and  be  determined  in 
a  similar  manner  which,  by  its  superior  magnitude,  importance, 
delicacy,  and  interest,  will  obscure  this  one  or  cause  it  to  be 
overlooked. ' ' 

Three  separate  "sets  of  lists"  or  returns  had  been  re- 
ceived by  the  president  of  the  Senate  from  the  State  of 
Florida,  the  first  being  a  return  signed  by  Humphreys, 
Pearce,  Holden,  and  Long,  the  four  Hayes  electors.  To 
this  return,  which  bore  date  December  6,  1876,  was  at- 
tached the  certificate  of  Marcellus  L.  Stearns,  then  gov- 
ernor of  the  State,  also  dated  on  that  day.  Return  No. 
2  consisted  of  a  list,  dated  December  6,  1876,  signed  by 
the  Tilden  electors,  authenticated,  not  by  the  governor's 
certificate,  but  by  the  certificate  of  the  attorney-general 
of  the  State  as  one  of  the  members  of  the  State  board  of 
canvassers ;  and  appended  to  the  return  was  an  additional 
certificate  of  the  electors  themselves  to  the  effect  that 
Governor  Stearns  had  refused  to  comply  with  their  de- 
mand for  a  certificate  of  their  appointment.  Certificate 
No.  3,  like  No.  2,  was  signed  by  the  Tilden  electors,  but 
was  authenticated  by  the  certificate  of  George  F.  Drew, 
the  governor  who  took  office  January  i,  1877.  This 
return  bore  date  January  26,  1877.  Governor  Drew's 
certificate  recited  the  quo  warranto  proceedings  begun  by 
the  four  Tilden  electors  against  the  four  Hayes  electors 
and  the  judgment  of  the  court  declaring  the  Tilden  elec- 
tors duly  elected.  It  recited  also  the  act  of  the  State 
Legislature  passed  January  17,  1877,  directing  a  recanvass 
of  the  vote  for  electors  and  stated  that  such  recanvass 
had  been  made,  with  the  result  of  establishing  the  elec- 
tion of  the  Tilden  electors. 

To  the  first  return,  which  attested  the  election  of  the 
Hayes  electors,  the  counsel  for  Mr.  Tilden  objected  that 
the  so-called  Hayes  electors  were  not  appointed  electors 
in  the  manner  directed  by  the  Legislature  of  the  State; 


144  The  Electoral  System 

that  the  qualified  voters  of  the  State  had  actually  ap- 
pointed Call,  Yonge,  Hilton,  and  Bullock  electors;  that 
the  certificates  issued  to  the  pretended  Hayes  electors 
and  the  lists  made  by  them  had  been  annulled  by  a  sub- 
sequent lawful  certificate  of  the  executive  of  Florida,  in 
which  the  Tilden  electors  were  declared  to  be  the  lawful 
electors,  duly  appointed  by  the  State  in  the  manner 
directed  by  its  constitution  and  also  by  the  act  of  the 
State  Legislature  and  the  quo  warranto  decree  in  the  suit 
of  the  Tilden  electors  against  the  so-called  Hayes  elec- 
tors ;  that  the  Tilden  electors  had  lawfully  cast  the  elec- 
toral vote  of  the  State;  and  that  the  certificate  issued 
by  Governor  Stearns  to  the  Hayes  electors  had  been 
annulled  and  declared  void  by  the  executive  and  by  the 
Legislature  and  judiciary  of  the  State. 

A  special  objection  was  made  to  the  return  signed  by 
the  Hayes  electors,  that  one  of  their  number,  Hum- 
phreys, was,  at  the  date  of  his  appointment  as  an  elector, 
a  United  States  shipping  commissioner  at  the  port  of 
Pensacola,  and  that  his  appointment  was  null  and  void 
under  the  constitutional  provision  prohibiting  any  Sena- 
tor or  Representative  or  any  person  holding  a  Federal 
office  of  trust  or  profit  from  appointment  as  an  elector. 

To  each  of  the  two  returns  made  by  the  Tilden  elec- 
tors, counsel  for  Mr.  Hayes  made  various  objections,  in 
effect  that  the  return  signed  by  the  Hayes  electors  was 
the  only  valid  return  and  that  its  acceptance  precluded 
consideration  of  the  others.  To  return,  No.  2  they  ob- 
jected because  of  its  lack  of  certification,  as  required 
by  the  Federal  law  of  1792,  by  the  governor  of  the  State 
in  office  at  the  time  ^f  the  election.  To  the  third  return 
they  objected  that,  while  it  bore  the  certificate  of  a 
governor  of  the  State,  he  was  not  governor  on  the  date 
when,  by  the  law  of  1792,  the  electors  were  required  to 
convene  and  vote ;  that  the  return  itself  was  predicated 
upon  a  new  canvass,  made  under  a  statute  not  in  exist- 


The  Case  of  Florida  i45 

ence  when  the  electors  were  appointed,  but  subsequently 
enacted.  They  declared  the  return  to  \i^  ex  post  facto, 
made  after  the  electoral  college  had  become  functus 
officio,  and  they  objected  to  the  quo  warranto  decree  in 
the  suit  between  the  rival  electors  as  null  and  void  and 
of  no  effect  upon  the  ti);le  of  the  electors  returned  by  the 
State  canvassing  board  in  December,  1876,  as  duly 
elected.  To  the  decree  adjudging  Drew  to  have  been 
lawfully  elected  governor  of  the  State  and  the  action  of 
the  returning  board  with  respect  to  the  electoral  votes 
fraudulent,  they  objected  as  obiter,  on  the  ground  that, 
assuming  the  jurisdiction  of  the  tribunal  over  the  subject 
the  validity  of  the  return  of  the  State  canvassing  board 
regarding  the  electors  was  not  in  issue  in  that  suit. 

After  some  preliminary  discussion  O'Conor  formu- 
lated the  Democratic  offer  of  proof  in  a  series  of  proposi- 
tions, none  of  which  seemed  to  require  extrinsic  evidence 
other  than  the  documents  attached  to  the  objections, 
except  the  following: 

**  Fifthly.  The  only  matters  which  the  Tilden  electors  desire 
to  lay  before  the  Commission  by  evidence  actually  extrinsic 
will  now  be  stated: 

**  I.  The  board  of  State  canvassers,  acting  on  certain  erro- 
neous views  when  making  their  canvass,  by  which  the  Hayes 
electors  appeared  to  be  chosen,  rejected  wholly  the  returns 
from  the  county  of  Manatee  and  parts  of  returns  from  each  of 
the  following  counties:  Hamilton,  Jackson^  and  Monroe. 

V  ■  •       •■     • 

**  II.  Evidence  that  Mr.  Humphreys,  a  Hayes  elector,  held 
office  under  the  United  States." 

It  is  unnecessary  to  review  in  detail  the  elaborate  argu- 
ments made  by  the  Democratic  counsel  in  support  of 
their  offer  of  proof,  nor  the  counter-arguments  against 
its  reception.  The  Democrats  contended  that  the  gover- 
nor's   certificate  which  the  Act  of  1792  requires  to   be 


146  The  Electoral  System 

annexed  to  the  electors'  lists  was  not  an  absolute  pre- 
requisite to  a  valid  return,  because  the  Constitution  con- 
tained no  such  requirement  and  the  statute  could  not  go 
beyond  the  terms  of  the  Constitution.  The  certificate 
issued  by  Governor  Stearns  to  the  Hayes  electors  pos- 
sessed no  superior  sanctity,  but  could  be  inquired  into 
and  proof  should  be  given  that  the  certificate  was  not  in 
conformity  with  the  fact.  If  the  governor,  by  mistake 
or  fraud,  should  furnish  a  certified  list  in  favor  of  persons 
not  appointed  electors,  was  there,  they  asked,  no  remedy? 
must  the  State  lose  its  vote,  or  have  its  vote  cast  against 
its  will,  as  if  by  a  false  personation  made  before  its  eyes, 
in  the  open  day,  which  it  has  no  power  to  resist? 

If  the  State  returning  board  or  the  executive  of  the 
State  transcended  its  or  his  authority  in  making  a  false 
return  or  certificate,  such  act,  they  argued,  was  ultra 
vires  and  void;  it  was  electing,  instead  of  determining 
the  result  of  an  election.  They  appealed  with  confidence 
to  the  judgment  in  Drew  against  Stearns,  the  adjudica- 
tion in  Call  vs,  Pearce,  the  suit  of  the  Tilden  electors 
against  the  Hayes  electors,  and  the  act  of  the  Legislature 
of  January  26,  1877,  and  they  also  argued  that  Hum- 
phreys was  ineligible  to  appointment  as  an  elector. 
Counsel  for  Mr.  Hayes,  in  resisting  the  introduction 
of  the  proffered  evidence,  argued  that  certificate  No. 
I  was  valid  and  the  other  two  void.  The  commission, 
they  insisted,  was  not  a  general  canvassing  board. 
Their  arguments  tended  to  restrict  its  powers  and  the 
powers  of  the  two  Houses  of  Congress  within  the  limita- 
tions understood  to  apply  to  the  powers  of  the  president 
of  the  Senate.  The  duty  of  counting  the  votes  was 
purely  ministerial.  Your  power,  they  said  to  the  com- 
mission, is  broad  enough  to  ascertain  whether  the  papers 
before  you,  as  certificates,  are  genuine  and  not  counter- 
feits and  have  been  verified  by  the  State  authority  as 
required  under  the  Constitution  and  laws;  broad  enough 


The  Case  of  Florida  147 

to  enable  you  to  ascertain  whether  the  electoral  college 
has  duly  complied  with  the  law.  But  it  is  the  electoral, 
and  not  the  popular  vote,  that  is  to  be  counted.  The 
question  is  not  which  set  of  electors  in  Florida  received 
a  majority  of  the  popular  vote,  but  which  set,  by  the 
actual  declaration  of  the  final  authority  of  the  State 
charged  with  the  duty  of  determining  the  result,  became 
entitled  to  cast  the  electoral  vote  of  the  State.  Counsel, 
moreover,  repudiated  the  notion  that  either  Congress  or 
the  commission  could  investigate  the  popular  vote.  The 
inquiry  would  be  physically  impossible,  because  it  could 
not  stop  at  the  first  stage  of  the  descent,  but  must  go  to 
the  bottom ;  it  was  legally  impossible,  because  the  Act  of 
1792  prescribed  the  evidence  of  the  appointment  of  elec- 
tors, and  it  was  constitutionally  impossible,  because  there 
was  no  judical  power  in  Congress  or  the  commission. 
Such  power  was  vested  by  the  Constitution  in  the  Su- 
preme Court  and  in  such  inferior  courts  as  Congress 
should  ordain  and  establish,  and  clearly  the  commission 
was  not  an  inferior  court,  since  appeal  from  its  decision 
lay,  not  to  the  Supreme  Court,  but  to  Congress. 

As  to  the  alleged  disqualification  of  Humphreys,  the 
Republican  view  was  forcibly  stated  by  Evarts : 

"  If  a  disqualified  elector  has  passed  the  observation  of  the 
voters  in  the  State,  passed  the  observation  of  any  sentinels 
or  safeguards  that  may  have  been  provided  in  the  State  law, 
when  these  are  all  overpassed  and  the  vote  stands  on  the  pre- 
sentation and  authentication  of  the  Constitution — that  is,  upon 
the  certificate  of  the  electors  themselves  and  the  governor, — it 
must  stand  unchallengeable  and  unimpeachable  in  the  count." 

Or,  as  Shellabarger  phrased  it, 

"if  an  elector  on  the  voting  day  is  endowed  with  all  the  in- 
signia of  right,  with  all  the  apparent  title  of  office  that  can^  ac- 
cording to  the  then  existing  State  machinery,  be  held  on  that 


14^  The  Electoral  System 

day,  he  is,  to  every  possible  legal  intent,  as  against  the  States, 
the  elector  both  de  facto  and  de  jure.  If,  after  that,  any  power 
can  try  the  title,  it  is  not  the  State,  but  the  nation.  .  .  . 
That  boundary  is  at  the  point  where  the  vote  is  sealed  and 
goes  to  the  capital.  .  .  .  Before  that  vote,  the  State  must 
have  done  her  last  act  in  adjudging  who  are  her  electors  and 
bestowing  the  evidences  of  their  title." 

The  battle  v^ras  fought  over  the  offer  of  proof.  The 
decision  of  the  commission,  by  a  vote  of  eight  to  seven, 
not  to  receive  evidence  outside  of  the  certificates,  except 
as  to  Humphreys'  eligibility,  foreshadowed  the  result  of 
the  whole  controversy  and  portended  the  defeat  of  the 
purpose  of  the  Democratic  counsel  to  go  behind  the  re- 
turns. Its  decision  was  that  "it  is  not  competent  under 
the  Constitution  and  the  law,  as  it  existed  at  the  date 
of  the  passage  of  said  act"  [the  Electoral  Commission 
law], 

*  *  to  go  into  evidence  aliunde  the  papers  opened  by  the  presi- 
dent of  the  Senate  in  the  presence  of  the  two  Houses  to  prove 
that  other  persons  than  those  regularly  certified  to  by  the 
governor  of  the  State  of  Florida,  in  and  according  to  the  de- 
termination and  declaration  of  their  appointment  by  the  board 
of  State  canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed  electors, 
or  by  counter-proof  to  show  that  they  had  not,  and  that  all 
proceedings  of  the  courts  or  acts  of  the  Legislature  or  of  the 
executive  of  Florida  subsequent  to  the  casting  of  the  votes 
of  the  electors  on  the  prescribed  day  are  inadmissible  for  any 
such  purpose." 

Although  the  counsel  for  the  Republican  candidates  had 
argued  that  the  acts  of  Humphreys,  as  a  de  facto  elector, 
were  valid,  the  commission,  by  a  vote  of  eight  to  seven 
(Bradley,  the  fifteenth  member,  voting  upon  this  question 
with  the  Democratic  members  of  the  commission),  de- 


1 


The  Case  of  Florida  149 

cided  to  receive  evidence  as  to  Humphreys'  disqualifica- 
tions. After  hearing  the  evidence,  the  commission,  by 
the  same  vote,  was  of  the  opinion  that  "without  refer- 
ence to  the  question  of  the  effect  of  the  vote  of  an  ineli- 
gible elector,  the  evidence  does  not  show  that  he  held  the 
office  of  shipping  commissioner  on  the  day  when  the 
electors  were  appointed.'* 

The  opinions  of  the  commission  exhibit  the  immemorial 
doubt  as  to  where  the  Constitution  intended  to  repose 
the  power  to  count  the  votes.  This  tribunal  declined  to 
express  any  definite  opinion  as  to  the  authority  of  the 
two  Houses  of  Congress;  nor  were  the  eight  members 
who  voted  to  exclude  the  Democratic  offer  of  proof  in 
accord  in  their  reasons  for  such  exclusion.  It  is  an 
interesting  circumstance,  however,  that  the  prevailing 
theory  was  in  reality  more  democratic  than  the  theory 
advocated  by  the  Democratic  counsel,  or,  if  not  more 
democratic,  more  strictly  consonant  with  the  Constitu- 
tion. As  was  anticipated  when  the  Electoral  Commission 
bill  was  under  discussion,  the  commission  divided  along 
political  lines  upon  every  question,  save  that  Bayard 
admitted  that  he  had  become  satisfied  as  to  Humphreys' 
eligibility.  That  Senators  and  Representatives  recently 
transferred  from  the  partisan  arena  of  Congress  should 
have  been  unable  instantly  to  assume  judicial-mindedness 
is,  perhaps,  not  remarkable;  but  that  the  four  justices  of 
the  Supreme  Court  selected  by  law  should  have  differed 
in  the  same  manner,  evinces  how  profoundly  political 
beliefs,  like  religious  and  philosophical  convictions,  affect 
human  action.  Morton  held  that  the  only  issue  to  be 
tried  was  whether  certificate  No.  i  came  from  the  elec- 
tors. This  was  established  by  the  determination  of  the 
State  returning  board  and  Governor  Stearns'  certifi- 
cate. It  was  not  in  the  power  of  the  State  to  undo  or 
impair  what  she  had  done,  by  subsequently  declaring  that 
the  electors  who  had  voted  had  not  been  appointed,  and 


150  The  Electoral  System 

that  by  a  recount  of  the  votes,  real"  or  pretended,  other  per- 
sons were  shown  to  have  been  appointed.  Morton  also 
approved  of  the  doctrine  that  an  elector  who  had  been 
declared  elected  by  the  State  returning  officers  and  had 
received  the  governor's  certificate  had  the  color  of  office, 
and  was  an  elector  de  facto y  whose  acts  were  valid.  All 
contests  or  corrections  should  be  concluded  before  the 
vote  of  the  electors  was  cast.  Frelinghuysen  quoted 
from  a  letter  written  a  few  days  previously  by  Chief 
Judge  Church,  of  the  New  York  Court  of  Appeals,  a 
distinguished  Democrat,  stating  that  the  authentication 
of  the  election  of  presidential  electors  according  to  the 
laws  of  each  State  is  final  and  conclusive,  and  that  there 
exists  no  power  to  go  behind  it.  As  to  Humphreys'  case, 
he  argued  that  the  provision  of  the  Constitution  on  which 
the  charge  against  that  elector  was  based  was  not  self- 
executing,  and  no  machinery  had  ever  been  devised  for 
an  investigation  to  determine  upon  electoral  disqualifica- 
tions. Hoar  regarded  the  determination  of  the  canvassing 
board  as  in  the  nature  of  a  judgment.  The  subsequent 
proceedings  of  the  State  Legislature  were  without  val- 
idity, and  "the  right  of  a  State  to  withdraw  the  vote 
of  its  electors  for  President,  in  obedience  to  the  decree 
of  a  court  entered  afterwards,  will  not  bear  discussion." 
Garfield  claimed  that  neither  the  two  Houses  nor  the 
commission  had  the  power  to  revise  the  action  of  the 
State  as  evidenced  in  certificate  No.  i.  Thurman,  Bay- 
ard, Abbott,  and  Hunton,  on  the  other  hand,  insisted 
that  the  decision  of  the  State  canvassing  board  was 
impeachable,  and  that  every  department  of  the  State 
government,  executive,  legislative,  and  judicial,  had  de- 
cided against  the  pretensions  of  the  Hayes  electors. 
Bayard  declared:  "If  a  State  cannot  succeed  by  the 
united  voices  of  its  three  branches,  executive,  legislative, 
and  judicial,  in  establishing  a  fact  transacted  under  its 
own  laws  and  within  its  own  limits,    it  is  idle  to   talk 


The  Case  of  Florida  151 

of  State  existence  or  State  rights."  In  Florida,  said 
Abbott, 

"we  have  this  strange  spectacle:  The  governor  and  all  the 
State  officers  having  been  voted  for  on  the  same  ticket  with 
the  Tilden  electors,  having  received  substantially  the  same 
vote,  and  having  been  counted  out  by  the  same  board  of  can- 
vassers, have  been  declared  elected  by  the  highest  judicial 
authority  of  the  State,  and  are  now  exercising  the  powers  of 
their  respective  offices  peaceably  and  to  the  general  content- 
ment of  the  whole  people,  while  the  Tilden  electors,  we  are 
told, — although  they,  too,  have  been  declared  elected  by  the 
courts, — have  no  power  to  act  and  their  vote  must  not  be 
counted.  .  .  .  Where  do  we  get  the  right  to  set  up  our 
construction  or  rather  the  construction  of  the  State  board  of 
canvassers,  of  a  statute  of  Florida,  against  the  Supreme  Court 
of  Florida?  " 

And  Thurman  urged  the  repeated  scrutiny  by  Congress 
of  the  vote  of  a  State  as  a  reason  why  such  procedure 
should  again  be  followed  :  "The  power  of  the  two  Houses 
to  go  behind  the  governor's  certificates  and  the  decisions 
of  canvassing  boards  has  been  again  and  again  asserted 
by  Congress  and  carried  into  execution." 

That  certificates  were,  prima  facie ^  always  open  to  re- 
buttal, was  the  idea  of  Mr.  Justice  Field,  and  he  pro- 
nounced the  doctrine  that  a  fraudulent,  coerced,  or 
mistaken  canvass  was  conclusive  "as  unsound  in  law  as 
it  is  shocking  in  morals."  The  canvassing  board  had 
only  ministerial  powers.  After  elaborately  reviewing  all 
the  proceedings  in  Florida  following  the  election,  he  de- 
clared that  there  was  the  highest  possible  evidence  of  the 
action  of  that  State,  and  that  there  could  be  no  serious 
question  as  to  which  of  the  two  sets  of  electors  had  been 
duly  appointed.  "That  State  has  spoken  to  us  through 
her  courts,  through  her  Legislature,  and  through  her 
executive,  and  has  told  us  in  no  ambiguous  terms  what 


152  The  Electoral  System 

was  her  will  and  whom  she  had  appointed  to  express 
it." 

Mr.  Justice  Strong  regarded  the  offer  of  proof  as 
equivalent  to  asking  the  commission  to  recanvass  a  State 
election  for  State  agents  or  officers.  Has  Congress,  he 
inquired,  the  power  to  recanvass  the  votes  and  returns  of 
votes  given  in  a  State  for  presidential  electors,  and 
answered,  it  had  not. 

"  The  framers  of  the  Constitution  well  understood  what  was 
necessary  to  confer  upon  Congress,  or  upon  either  House, 
power  to  canvass  elections  or  returns,  and  the  subject  did  not 
escape  their  attention.  When  such  power  was  intended  to  be 
granted,  it  was  given  in  plain  language.  Each  House  was 
made  a  judge  *  of  the  elections,  returns,  and  qualifications 
of  its  members.'  No  such  language  was  used  respecting 
electors,  and  for  what  appears  to  me  to  be  the  plainest  reason. 
The  scheme  of  the  Constitution  was  to  make  the  appointment 
of  electors  exclusively  a  State  affair,  free  from  interference 

of  the  legislative  department  of  the  government 

Congress,  therefore,  had  no  right  to  enter  into  the  considera- 
tion of  the  evidence  offered,  and  the  commission  obviously 
has  no  larger  authority  than  Congress  had.  The  State  pos- 
sessed ample  power  to  purify  her  own  elections,  correct  erro- 
neous canvasses,  rectify  false  returns;  but  these  things  she 
should  accomplish  completely  before  the  day  of  casting  the 
electoral  vote  arrives." 

He,  like  most  of  his  associates,  admitted  that  the  gover- 
nor's certificate  was  not  unimpeachable.  "It  may  be 
shown  to  be  untrue  by  proof  that  it  does  not  correspond 
with  the  determination  of  the  canvassing  board.  It  may 
be  proved  to  be  a  forgery.  But  in  the  present  case  these 
things  are  not  alleged."  What  was  done  in  Florida  after 
December  6th,  he  argued,  was  immaterial.  Neither  the 
action  of  the  Legislature  nor  a  post  hac  decision  of  a 
court  could  affect  an  act  rightfully  done,  when   it  had 


The  Case  of  Florida  i53 

been  completed  before  the  Legislature  and  the  court  at- 
tempted to  annul  it.  "There  must  be  a  finality  in  ascer- 
taining the  results  of  an  election,  and  when  the  election 
is  a  mode  of  appointment  of  persons  to  cast  a  vote  for  a 
State  on  an  appointed  day,  the  finality  must  be  on  or  be- 
fore that  day,  else  nothing  can  be  settled. ' '  If,  he  added, 
"the  votes  of  electors  can  be  destroyed  by  State  action 
after  they  have  been  cast,  it  may  be  done  next  July  as 
well  as  it  can  be  now."  This  last  argument  is  untenable, 
because  the  Constitution  itself  interposes  a  bar  to  inquiry 
after  the  electoral  votes  have  been  counted  in  the  pres- 
ence of  the  two  Houses,  for  it  declares  that  the  person 
having  the  greatest  number  of  votes  for  President  (if  a 
majority)  shall  be  President,  and  provides  no  machinery 
for  contest  or  debate  after  the  actual  count  has  taken 
place. 

Perhaps  the  greatest  constitutional  lawyer  upon  the 
Supreme  Bench  of  that  day  was  Samuel  F.  Miller,  and 
his  reasons  for  rejecting  the  Democratic  offer  of  proof 
are  worthy  of  note.  As  to  Humphreys'  eligibility,  he 
claimed  that  the  vote,  being  a  fact  accomplished,  could 
not  be  annulled  by  any  subsequent  proceeding  to  ques- 
tion his  eligibility,  that  the  Constitution  was  not  self- 
executing,  and  that  since  neither  the  Constitution  nor 
Congress,  nor  Florida  had  created  a  tribunal  or  provided 
a  mode  of  procedure  by  which  the  eligibility  of  an  elector 
might  be  inquired  into  and  determined,  Humphreys,  the 
de  facto  elector,  rightfully  cast  his  vote. 

Upon  the  main  question,  he  said : 

"It  is  manifestly  the  duty  and  therefore  the  right  of  the 
State,  which  is  the  appointing  power,  to  decide  upon  the 
means  by  which  the  act  of  appointment  shall  be  authenti- 
cated and  certified  to  the  counting  power  and  to  the  electors 
who  are  to  act  on  that  authority.  To  this  proposition  I 
have  heard  no  dissent  from  any  quarter.     This  evidence  of 


154  The  Electoral  System 

appointment  must  in  its  nature  vary  according  to  the  manner  in 
which  the  electors  are  appointed.  If  elected  by  the  Legis- 
lature, as  they  may  be,  an  appropriate  mode  would  be  the 
signatures  of  the  presiding  officers  of  the  two  Houses  to  the 
fact  of  such  appointment  or  a  certified  copy  of  the  act  by 
which  they  were  elected.  If  appointed  by  the  governor,  his 
official  certificate  with  the  seal  of  the  State  would  be  an  ap- 
propriate mode.  If  elected  by  popular  suffrage,  that  election 
should  be  ascertained  and  authenticated  in  the  mode  which 
the  law  of  the  State  prescribes  for  that  purpose." 

After  reciting  the  Florida  statute,  defining  the  duties  of 
the  State  returning  board,  he  said : 

"When  the  canvassing  board  herein  mentioned  has  can- 
vassed the  returns  of  the  election,  has  determined  who  is 
elected,  and  has  declared  that  fact  by  signing  the  certificate, 
which  is  to  be  deposited  with  the  Secretary  of  State,  the  per- 
son named  in  the  certificate  is  from  that  moment  a  duly  ap- 
pointed elector.  The  fact  of  his  appointment,  that  is,  his 
election,  has  been  ascertained  and  declared  by  the  tribunal, 
and  the  only  tribunal,  to  which  the  duty  and  power  of  so  de- 
claring has  been  confided  by  law." 

This  is  the  best  exposition  to  be  found  in  any  of  the 
opinions  concerning  the  appointment  of  an  elector,  which 
is  completed,  not  by  his  election,  but,  as  Mr.  Justice 
Miller  says,  when  the  appropriate  State  authority  certifies 
to  that  fact.  The  Florida  board,  he  maintained,  had  not 
exceeded  its  jurisdiction,  because  the  statute  of  Florida 
clothed  it  with  power,  upon  all  the  facts  submitted  to  it, 
**to  determine,  that  is,  to  declare,  who  is  elected."  The 
only  votes  which  the  Constitution  authorizes  either  the 
president  of  the  Senate  or  the  Houses  to  count  are 
the  votes  of  the  electors  of  President  and  Vice-President, 
"and  not  the  votes  by  which  the  electors  are  appointed." 
The  certificates  received  at  the  seat  of  government  from 


The  Case  of  Florida  155 

the  State  authorities  are   evidence  of  the  appointment 
of  the  electors.     Summing  up,  he  said  : 

**  Congress  has  nothing  to  do  with  this  appointment,  neither 
with  the  manner  of  appointment,  nor  the  manner  of  authenti- 
cating the  appointment. 

"If,  then,  a  body  of  electors  present  with  the  vote  which 
they  cast  for  President  and  Vice-President  the  evidence  which 
the  State  has  prescribed  of  their  appointment,  the  inquiry  of  ' 
the  two  Houses  is  answered.  They  have  been  legally  and 
officially  informed  who  are  entitled  to  vote  as  electors  for  that 
State.  .  .  .  Much  has  been  said  of  the  danger  of  the 
device  of  returning  boards,  and  it  may  be  they  have  exer- 
cised their  power  in  a  manner  not  always  worthy  of  commen- 
dation. But  I  take  the  liberty  of  saying  that  such  a  power 
lodged  in  one  or  in  both  Houses  of  Congress,  would  be  a  far 
more  permanent  menace  to  the  liberty  of  the  people,  to  the 
legitimate  result  of  the  popular  vote,  than  any  device  for 
counting  those  votes  which  has  as  yet  been  adopted  by  the 
States." 

The  "fifteenth"  member  of  the  commission,  Mr.  Jus- 
tice Bradley,  was  more  severely  criticised  than  the  other 
Republican  members,  probably  for  the  unphilosophical 
reason  that,  while  partisanship  was  expected  of  fourteen, 
the  "fifteenth"  member,  the  real  judge,  should  have  been 
unbiassed.  It  was  his  opinion  that  the  president  of  the 
Senate  had  not  the  power  to  count, — that  the  Constitu- 
tion devolved  this  duty  upon  the  two  Houses.  But  if 
examination  was  to  be  made  by  them,  how  far  could  the 
Houses  go?  "The  extreme  reticence  of  the  Constitution 
leaves  wide  room  for  inference."  The  appointment  of 
electors  belongs  exclusively  to  the  States ;  so  completely 
is  congressional  and  Federal  influence  excluded,  that  not 
a  member  of  Congress  nor  an  officer  of  the  Federal  Gov- 
ernment is  allowed  to  be  an  elector.  This  exclusive 
power  and  control  of  the  State  is  ended  and  determined 


156  The  Electoral  System 

when  the  day  fixed  by  Congress  for  voting  has  arrived, 
and  the  electors  have  deposited  their  votes  and  made  out 
the  lists  required  by  the  Constitution.  Until  that  time 
the  whole  proceeding,  except  as  to  the  date  of  election, 
is  conducted  under  State  law  and  State  authority.  Con- 
gress, he  declared,  cannot  institute  a  scrutiny  into  the 
appointment  of  electors  by  a  State.  The  utmost  it  can 
do  is  to  ascertain  whether  the  State  has  made  an  appoint- 
ment according  to  the  form  prescribed  by  its  laws.  In 
support  of  this  view  he  referred  to  the  proviso  in  the  bill 
of  1800  that  "no  petition  or  exception  shall  be  granted, 
allowed,  or  considered  by  the  sitting  grand  committee, 
which  has  for  its  object  to  draw  into  question  the  number 
of  votes  given  for  an  elector  in  any  of  the  States,  or  the 
fact  whether  an  elector  was  chosen  by  a  majority  of  the 
votes  in  his  State  or  district."  The  deduction  was  that 
neither  the  commission  nor  Congress  had  power  to  enter 
upon  the  proposed  investigation.  But,  he  said,  inquiry 
naturally  arises  as  to  the  manner  in  which  the  electors 
appointed  by  a  State  are  to  be  accredited.  The  certificate 
of  the  governor  demanded  by  the  Act  of  1792  is  only 
prima  facie  evidence.  The  Houses  may  undoubtedly 
inquire  whether  the  supposed  certificate  is  genuine.  The 
Houses  would  be  bound  to  recognize  the  determination 
of  the  State  board  of  canvassers  as  the  act  of  the  State, 
and,  while  they  might  go  behind  the  governor's  certificate, 
if  necessary,  they  could  do  so  only  for  the  purpose  of  in- 
quiring whether  he  had  truly  certified  the  results  at  which 
the  board  arrived.  Discussing  the  Florida  judgments, 
which  were  pressed  by  the  Democratic  counsel  with  great 
zeal  upon  the  commission  as  conclusive,  he  asked  "whether 
the  subsequent  action  of  the  courts  or  Legislature  of 
Florida  can  change  the  result  arrived  at  and  declared  by 
the  board  of  State  canvassers,  and  consummated  by  the 
vote  of  the  electors  and  the  complete  execution  of  their 
function."     He  confessed  that  at  one  stage  of  the  pro- 


The  Case  of  Florida  157 

ceedings  he  was  inclined  to  consider  the  quo  warranto 
decree  as  sufficient  to  contradict  the  determination  of  the 
State  board  of  canvassers, — assuming,  of  course,  that 
the  court  had  jurisdiction  of  the  case;  but  upon  reflec- 
tion, viewing  the  action  of  the  board  of  canvassers  as  a 
determination,  a  species  of  judgment  upon  the  vote  of 
the  State,  a  quasi  judicial  proceeding  under  the  Florida 
statute,  he  had  concluded  that  the  judgment  on  the  quo 
warraiito  was  an  attempted  reversal  of  this  decision,  made 
without  jurisdiction. 

"  If,"  he  said,  **  the  court  had  had  jurisdiction  of  the  sub- 
ject-matter, and  had  rendered  its  decision  before  the  votes  of 
the  electors  were  cast,  its  judgment,  instead  of  that  of  the  re- 
turning board,  would  have  been  the  final  declaration  of  the 
result  of  the  election.  But  its  decision  being  rendered  after 
the  votes  were  given,  it  cannot  have  the  operation  to  change 
or  affect  the  vote,  whatever  effect  it  might  have  in  a  future 
judicial  proceeding  in  relation  to  the  presidential  election. 
The  official  acts  of  officers  de  facto ^  until  they  are  ousted  by 
judicial  process  or  otherwise,  are  valid  and  binding.  But  it 
is  a  grave  question  whether  any  courts  can  thus 'interfere  with 
the  course  of  the  election  for  President  and  Vice-President. 
The  remarks  of  Mr.  Justice  Miller  on  this  subject  are  of  great 
force  and  weight." 

Mr.  Justice  Clifford,  president  of  the  commission, 
probably  stated  the  Democratic  offer  of  proof  with  judi- 
cial accuracy : 

**  Few,  I  presume,  will  deny  that  it  is  competent  for  the 
commission  to  take  notice  of  the  statutes  of  the  State  relating 
to  the  matter  in  controversy  without  any  formal  proof  of  their 
legal  authenticity.  Suppose  that  is  so,  then  there  are  no  mat- 
ters involved  in  the  legal  issues  presented  which  may  not  be 
thoroughly  examined  in  a  very  few  hours.  Differences  of 
opinion  may  exist  as  to  the  legal  effect  of  the  evidence,  if 
admitted,  but  I  have  yet  to  learn  that  any  one  denies  that 


I  S3  The  Electoral  System 

the  alleged  facts  are  capable  of  being  proved  by  authentic 
documents  in  the  archives  of  the  State.  Certified  copies  of 
the  records  and  judgment  of  the  court  in  the  quo  warranto 
proceedings  are  also  here,  ready  to  be  introduced,  and  no  one, 
I  suppose,  will  deny  that  a  duly  exemplified  copy  of  a  record 
or  judgment  between  the  same  parties  would  be  admissible  in 
this  case,  unless  it  be  held  that  the  action  of  the  State  can- 
vassers or  the  certificate  of  the  governor  closes  the  door  to  all 
investigations." 

That  neither  the  return  of  the  State  board  nor  the  gov- 
ernor's certificate  concluded  inquiry,  he  then  proceeded 
to  argue. 

None  of  the  proceedings  subsequent  to  December  6, 
1876,  **were  intended  to  choose  new  electors"  ;  they  were 
"merely  to  ascertain  who  were  elected  at  the  antecedent 
general  election,"  and  the  Democratic  contention  was 
stated,  with  great  impressiveness  by  Justice  Clifford, 
when  he  said : 

"  Repeated  admissions  have  been  made  during  the  discus- 
sion that  a  State  may  determine  what  persons  the  qualified 
voters  have  chosen  and  appointed  electors  of  President  and 
Vice-President,  but  the  proposition  is  advanced  that  the  deter- 
mination must  be  made  before  the  electors  meet  and  cast  their 
votes,  and  that  it  cannot  be  made  at  any  subsequent  time. 
Antecedent  investigation  could  not  be  made  in  this  case  be- 
fore the  electors  voted,  for  the  reason  that  the  old  board  of 
State  canvassers  did  not  make  their  return  until  the  day  when 
the  votes  were  cast,  nor  were  the  Hayes  electors  furnished 
with  the  certificate  of  the  governor  until  that  day.  All  that 
could  be  done  by  the  way  of  investigation  before  that  time 
was  done,  as  appears  by  the  certificate  of  the  Attorney  Gen- 
eral, which  was  also  given  to  the  Tilden  electors  on  the  same 
6th  of  December.  Without  a  moment's  delay  the  Tilden 
electors  sued  out  a  writ  of  quo  warranto  against  the  usurpers, 
and  by  extreme  diligence  caused  it  to  be  served  on  them  one 
hour  before  they  cast  their  votes.     Weighed  in  the  light  of 


The  Case  of  Florida  159 

these  suggestions,  the  proposition  that  subsequent  investigation 
cannot  be  made  is  monstrous,  as  it  shows  a  mockery  of  justice. 
You  may  investigate  before  the  votes  are  cast  when  it  is  im- 
possible for  want  of  time,  but  you  shall  not  after  that,  as  you 
would  then  have  an  opportunity  to  ascertain  the  truth!  " 

The  following  seems  to  be  a  fair  summary  of  the  points 
actually  decided  by  a  majority  of  the  commission:  (i) 
Congress  has  nothing  to  do  v^rith  the  appointment  of  elec- 
tors or  the  manner  of  their  appointment.  The  single 
function  of  an  elector  is  to  give  one  of  the  votes  to  which 
the  State  is  entitled  for  President  and  Vice-President. 
His  powers  begin  and  end  there.  He  has  no  permanent 
office  with  continuing  functions.  (2)  When  the  State 
canvassing  authority  has  declared  who  has  been  elected 
an  elector  and  has  so  certified  in  accordance  with  the  law 
of  the  State,  the  person  named  in  that  certificate  is  a  duly 
appointed  elector,  whose  title,  if  he  be  not  constitution- 
ally disqualified,  is  beyond  all  challenge  or  impeachment, 
except  perhaps  by  the  State,  through  some  appropriate 
tribunal.  (3)  But  any  such  inquiry,  assuming  it  can  law- 
fully be  made,  must  be  completed  before  the  day  for 
casting  the  electoral  vote  arrives.  (4)  When  the  electors 
have  cast  their  votes,  and  transmitted  them  to  the  presi- 
dent of  the  Senate,  their  functions  are  gone  forever. 
The  power  of  the  State  in  the  election  of  a  President  is 
then  exhausted,  her  jurisdiction  absolutely  extinguished. 
It  is  not  in  her  power  to  undo  or  impair  what  she  has 
done,  either  by  the  action  of  her  Legislature  or  her 
courts. 

There  is  a  lack  of  unanimity  among  the  majority  of  the 
commission  upon  the  question  whether  a  State  could  re- 
vise the  action  of  its  canvassing  authority,  even  before 
December  6th.  Mr.  Justice  Strong  said  that  if  there  be 
any  power  over  the  election  of  electors  up  to  the  day 
when   the  electors  cast  their  ballots  for  President,  the 


i6o  The  Electoral  System 

State  undoubtedly  has  it.  Mr.  Justice  Bradley  seemed 
to  doubt  whether  any  courts  could  interfere  with  the 
course  of  an  election  for  President  and  Vice-President. 

Greater  diversity  of  sentiment  existed  among  the  ma- 
jority of  the  commission  upon  the  question  of  an  elector's 
eligibility.  An  elector  invested  with  color  of  office,  said 
Morton,  was  an  elector  de  factOy  whose  right  to  vote 
could  not  be  challenged,  even  if  he  belonged  to  the  class 
upon  which  the  Constitution  has  laid  its  prohibition. 
Frelinghuysen  declared  the  provision  of  the  Constitution 
not  self-executing.  Hoar  would  not  rely  upon  **the  doc- 
trine which  recognizes  as  valid  in  law  the  acts  of  public 
or  corporate  officers,  who,  without  rightful  title,  perform 
the  functions  of  an  office  with  which  they  are  in  part 
clothed."  Garfield  did  not  discuss  the  point.  Justice 
Strong  also  refused  to  consider  it,  because  he  regarded 
the  Hayes  electors  as  officers  de  jure.  Justice  Miller's 
view  that  the  inquiry  as  to  Humphreys'  eligibility  came 
too  late  has  been  considered.  The  constitutional  provi- 
sion, in  Miller's  judgment,  was  not  self-executing,  nor 
had  Florida  established  any  tribunal  for  the  trial  of  ques- 
tions affecting  electors.  Justice  Bradley,  while  express- 
ing similar  views,  said,  in  his  opinion  in  the  Louisiana 
case,  that  he  was  not  entirely  satisfied  with  his  previous 
conclusion  that  "if  a  disqualified  elector  casts  his  vote 
when  disqualified,  the  objection  cannot  be  taken.  .  .  . 
But  as  at  present  advised,  I  am  inclined  to  the  opinion 
that,  if  constitutionally  disqualified  when  he  casts  his 
vote,  such  vote  ought  not  to  be  counted."  All  the 
minority  of  the  commission  unanimously  held  the  con- 
stitutional prohibition  self-executing.  The  vote  of  an 
elector  whom  the  supreme  law  of  the  land  forbids  a  State 
to  appoint  they  considered  absolutely  void.  But  what 
tribunal   was  to  decide  the  question? 

The  report  of  the  commission,  announcing  its  decision 
that  the  Hayes  electors  had  received  the  vote  of  Florida 


The  Case  of  Florida  i6i 

and  were  duly  appointed  electors  was  made  on  February 
9,  1877.  The  Houses  convened  on  February  loth,  and 
as  objection  was  made  to  the  decision  the  Houses  then 
separated.  The  Senate,  by  a  strict  party  vote,  sustained 
the  commission  and  decided  that  the  votes  given  by  the 
Hayes  electors  should  be  counted.  The  decision  of  the 
commission  was  received  with  disapproval  in  the  House 
of  Representatives,  which,  on  February  12th,  by  a  vote 
of  168  to  103  (nineteen  not  voting),  decided  to  count  the 
votes  given  by  the  Tilden  electors.  The  vote  was  a  strict 
party  vote,  except  that  one  Democrat  concurred  with  the 
Republicans. 


CHAPTER  VII 

THE   LOUISIANA  CASE 

THE  views  enunciated  by  a  bare  majority  of  the  com- 
mission in  the  Florida  case  plainly  foreshadowed 
their  decision  upon  the  returns  from  Louisiana  and  South 
Carolina.  From  Louisiana  there  came  to  the  presiding 
officer  of  the  Senate  three  sets  of  returns,  and  these,  with 
the  objections  thereto,  were  referred  to  the  commission. 

To  understand  the  case  presented  to  the  commission, 
a  brief  summary  of  antecedent  events  in  Louisiana  be- 
comes necessary. 

The  Legislature  of  Louisiana,  in  the  winter  of  1872, 
abolished  the  returning  or  canvassing  board  created  by 
an  act  passed  in  1870,  and  authorized  the  State  Senate  to 
elect  from  all  political  parties  a  new  board  of  five  per- 
sons, to  be  the  returning  officers  for  elections  in  the  State 
and  to  have  power  to  make  the  returns  of  all  elections,  a 
majority  to  constitute  a  quorum. 

The  returning  officers  were  to  compile  the  statements 
from  all  polls  or  voting  places  at  which  there  should  have 
been  a  fair,  free,  and  peaceable  registration  and  election. 
And  whenever,  from  any  poll  or  voting  place,  there 
should  be  received  the  statement  of  any  supervisor  of 
registration,  or  commissioner  of  election,  in  the  form 
prescribed  by  the  act,  based  upon  the  affidavits  of  three 
or  more  citizens,  of  any  riot,  tumult,  acts  of  violence,  in- 
timidation, armed  disturbance,  bribery,  or  corrupt  influ- 
ence, preventing  or  tending  to  prevent  a  fair,  free,  and 

162 


The  Louisiana  Case  i6 


o 


peaceable  vote  of  all  the  qualified  electors  entitled  to 
vote  at  such  poll  or  voting  place,  the  returning  officers 
were  charged  with  the  duty  of  investigating  the  state- 
ment, and  if  upon  investigation  they  should  become 
satisfied  that  such  riot,  tumult,  acts  of  violence,  intimida- 
tion, armed  disturbance,  bribery,  or  corrupt  influence  did 
materially  interfere  with  the  purity  and  freedom  of  the 
election  or  registration  at  such  polling  place,  the  return- 
ing officers  were  authorized  to  exclude  all  the  votes  from 
such  place  from  their  returns. 

This  statute,  while  it  conferred  extensive  judicial 
powers  upon  the  returning  officers, — powers  which  the 
Supreme  Court  of  the  State  had  decided  to  be  constitu- 
tionally granted, — authorized  these  returning  officers  to 
reject  the  votes  of  a  poll  only  when  a  verified  statement, 
based  upon  affidavits  of  at  least  three  citizens,  had  been 
forwarded  by  the  supervisor  of  registrations  or  the  com- 
missioner of  elections  in  the  district  and  when  the  state- 
ment after  investigation  had  been  proved  correct.  The 
statement  was  required  to  be  forwarded  to  the  board, 
together  with  the  returns  from  the  precinct  or  parish 
concerned.  ' '  Not  a  single  parish, ' '  said  one  of  the  Demo- 
cratic counsel,  "sent  up  any  such  statement  with  its 
return,  verified  by  the  affidavit  of  three  persons."  The 
returning  officers  had  no  authority  to  make  the  investiga- 
tion, as  Morton  had  said  in  the  report  of  the  Senate 
committee  of  1873,  unless  the  foundation  was  first  laid  by 
the  sworn  statements  of  officers  present  at  the  election. 
On  February  23,  1875,  a  committee  of  the  House  of 
Representatives,  of  which  Hoar,  Wheeler,  and  Frye  were 
members,  reported  to  the  House  that  the  powers  of  the 
returning  board  were  limited  to  a  canvass  and  compila- 
tion of  the  returns  lawfully  made  to  them  by  the  local 
officers,  except  in  cases  where  such  returns  were  accom- 
panied by  the  certificate  of  the  supervisor  or  commis- 
sioner, provided  in  the  third  section  of  the  Act  of  1872. 


1 64  The  Electoral  System 

**  In  such  cases,  the  last  sentence  of  that  section  shows  that 
it  was  expected  that  they  [the  returning  officers]  would  ordi- 
narily exercise  the  grave  and  delicate  duty  of  investigating 
charges  of  riot,  tumult,  bribery,  or  corruption  on  a  hearing  of 
the  parties  interested  in  the  office.  It  never  could  have  been 
meant  that  this  board,  of  its  own  motion,  sitting  in  New- 
Orleans,  at  a  distance  from  the  place  of  voting,  and  without 
notice,  could  decide  the  rights  of  persons  claiming  to  be 
elected." 

On  November  i6,  1876,  the  returning  officers  met  in 
New  Orleans  to  canvass  the  returns  of  the  recent  elec- 
tion. The  fifth  member  of  the  board,  who  was  a  Demo- 
crat, resigned  immediately  after  the  election,  and  his 
four  Republican  associates  declined  to  fill  the  vacancy. 
Against  the  protests  of  Democratic  leaders  the  board 
held  its  sessions  in  secret,  nor  would  it  allow  the  United 
States  supervisors  to  be  present  or  counsel  for  contest- 
ants to  watch  the  counting  of  returns.  Although  in  four 
Republican  parishes  the  names  of  only  three  electors  ap- 
peared on  the  ballots,  it  treated  these  ballots  as  though 
they  bore  the  names  of  the  eight  electors.  Its  principal 
changes  had  been  made  by  counting  for  all  the  eight 
Hayes  electors  some  twelve  thousand  ballots  bearing  the 
names  of  only  three ;  and  by  throwing  out  without  even 
the  semblance  of  a  protest  about  thirteen  thousand 
Democratic  and  two  thousand  Republican  votes,  mainly 
in  the  parishes  of  East  Baton  Rouge,  De  Soto,  East  and 
West  Feliciana,  Grant,  Iberia,  Lafayette,  Lafourche, 
Morehouse,  and  Ouachita.  The  fraudulent  and  illegal 
action  of  the  returning  officers  had.  Senator  McDonald 
claimed  before  the  Electoral  Commission,  been  proved  in 
the  evidence  taken  by  the  Senate  Committee  on  Privileges 
and  Elections,  in  pursuance  of  a  resolution  of  the  Senate, 
adopted  December  4,  1876,  and  had  been  established  in 
the  testimony  taken  by  a  special  committee  of  the  House 
of  Representatives.     Senator  Howe,  in  his  address  before 


The  Louisiana  Case  165 

the  commission,  admitted  that  the  board  had  rejected  the 
votes,  in  part  or  in  whole,  of  twenty-two  parishes,  but 
maintained  that  these  votes  had  been  thrown  out  after 
satisfactory  proof  to  the  returning  officers  of  violence  and 
intimidation.  He  did  not  claim,  however,  that  the  statu- 
tory protests  had  first  been  filed.  Direct  proof  of  violence 
or  intimidation  was  wanting  in  a  number  of  instances; 
the  Republican  counsel  sought  to  supply  the  lack  by 
inference.  The  great  disparity  between  the  registration 
of  white  and  colored  citizens  and  the  actual  vote  proved 
conclusively,  they  said,  that  colored  men  had  been  for- 
bidden to  vote  or  forced  to  cast  their  ballots  for  Demo- 
cratic electors. 

The  first  of  the  three  sets  of  returns  from  Louisiana 
was  nominally  correct  in  form.  It  was  signed  by  the 
eight  Hayes  electors  on  December  6,  1876,  and  to  it  was 
annexed  a  certificate  of  William  Pitt  Kellogg,  then  gov- 
ernor of  the  State,  certifying  to  the  election  of  these 
electors,  of  whom  he  himself  was  one.  Return  No.  3, 
was  in  effect  the  same  as  No.  i.  Return  No.  2  was 
signed  by  the  eight  Tilden  electors  and  was  attested 
by  the  certificate,  dated  December  6,  1876,  of  John 
McEnery,  who  claimed  to  be  the  governor  of  the  State. 
To  certificates  No.  i  and  No.  3,  the  Democratic  counsel 
registered  a  long  series  of  objections,  in  substance  as 
follows:  That  the  State  was  without  a  Republican 
form  of  government  and  that  Kellogg  was  not  its  gover- 
nor; that  there  was  no  law  in  force  in  November,  1876, 
regulating  the  appointment  of  presidential  electors;  that 
the  people  had  elected  the  Tilden  electors  by  a  majority 
for  each  of  six  thousand  and  upwards,  and  that  said  elec- 
tors had  received  a  certificate  from  the  lawful  governor, 
McEnery;  that  the  returning  board  was  an  unconstitu- 
tional body;  that  the  statutes  creating  it  and  clothing  it 
with  judicial  functions  conflicted  with  the  Constitution; 
and  that  four  members  of  the  board,  all  of  one  political 


1 66  The  Electoral  System 

party,  had  no  jurisdiction  to  canvass  the  votes.  It  was 
objected  also  that  these  returning  officers  could  not  reject 
the  statement  of  the  votes  at  any  poll  without  the  cer- 
tificate and  proofs  required  by  the  statute ;  that  no  pro- 
tests sufficient  to  change  the  result  of  the  election  as 
shown  on  the  face  of  the  returns  had  been  filed,  but  that 
the  board  had  fraudulently  rejected  votes  and  changed 
returns;  and  that  two  electors,  Levissee  and  Brewster, 
were  Federal  officers  on  November  7,  1876,  the  first  a 
commissioner  of  the  United  States  Circuit  Court,  and 
the  second  a  surveyor-general  of  the  land  office  of  the 
district  of  Louisiana.  It  was  further  objected  that  the 
State  law  forbade  the  appointment  of  certain  State  offi- 
cers, including  the  governor,  as  electors. 

To  return  No.  2  the  Republican  counsel  objected 
that  there  was  no  evidence  that  any  of  the  so-called 
Tilden  electors  had  been  appointed  as  the  Legislature 
directed,  and  that  McEnery  was  not  the  governor  of  the 
State. 

At  the  suggestion  of  the  commission,  the  Democratic 
counsel  through  Trumbull  formulated  an  offer  of  proof 
analogous  to  that  made  by  O'Conor  in  the  Florida  case. 
This  offer  contained  the  several  matters  set  up  by  the 
Democrats  in  opposition  to  certificates  numbered  i  and  3  ; 
and  the  discussion  proceeded  upon  this  proffer  of  evidence. 
In  their  argument  the  Democratic  counsel  not  only  con- 
tended that  the  two  Houses  in  joint  meeting  had  power  to 
go  behind  the  State  returns,  but  went  to  the  extreme 
length  of  insisting  that  as  each  House  of  Congress  was  the 
constitutional  judge  of  the  election  of  its  own  members, 
the  two  Houses  were  judges  of  the  election  of  presidential 
electors.  In  support  of  a  claim  hostile  to  the  Constitution, 
appeal  was  made  to  the  action  of  Congress  in  1873. 
Senator  McDonald,  of  Louisiana,  urged  the  commission 
to  consider  the  evidence  that  had  been  taken  by  the 
Senate   committee   and   the   special    committee   of   the 


The  Louisiana  Case  167 

House,  and  to  find,  either  upon  that  evidence  or  upon 
any  other  that  the  commission  decided  to  receive, 
whether  the  Hayes  or  the  Tilden  electors  had  been 
elected.  Representative  Jenks,  one  of  the  counsel  for 
the  Tilden  electors,  stated  that  he  was  prepared  to  prove 
that  the  Tilden  electors  were  elected  in  the  manner  pre- 
scribed by  the  statutes  of  Louisiana,  and  he  dilated  upon 
the  fact  that  votes  had  been  thrown  out  by  the  returning 
board  in  a  number  of  parishes  throughout  the  State.  It 
was  the  duty  of  the  commission,  said  Jenks,  to  receive 
the  testimony  taken  by  the  Senate  and  the  House  com- 
mittees, for  the  commission  was  acting  "substantially  as 
though  it  were  a  congressional  body."  Matthew  H. 
Carpenter,  whose  affiliations  had  formerly  been  with  the 
Republican  party  and  who  had  been  a  member  of  the 
Senate  committee  which  reported  upon  the  unconstitu- 
tional and  unwarrantable  action  of  the  returning  board 
of  Louisiana,  in  1873,'  argued  that  four  persons  styling 
themselves  the  returning  board  of  that  State  had,  with- 
out the  semblance  of  jurisdiction,  rejected  ten  thousand 
Tilden  votes  and  declared  the  Hayes  electors  elected  by 
about  two  thousand  majority.  Starting  with  the  premise 
that  both  Houses  of  Congress  had  power  to  count  the 
electoral  returns,  and  that  both  Houses  had  repeatedly, 
through  committees,  made  inquiry  into  the  election  pro- 
cesses of  the  State,  the  Democratic  counsel  easily  deduced 

'  "  I  desire  to  say,  in  the  first  place,  that  I  do  not  appear  for  Samuel  J. 
Tilden.  He  is  a  gentleman  whose  acquaintance  I  have  not  the  honor  of  ; 
with  whom  I  have  no  sympathy  ;  against  whom  I  voted  on  the  7th  of  No- 
vember last ;  and  if  this  tribunal  could  order  a  new  trial,  I  should  vote 
against  him  again,  believing,  as  I  do,  that  the  accession  of  the  Democratic 
party  to  power  in  this  country  to-day  would  be  the  greatest  calamity  that 
could  befall  the  people  except  one,  and  that  one  greater  calamity  would  be 
to  keep  him  out  by  fraud  and  falsehood.  I  appear  here  for  10,000  legal 
voters  of  Louisiana,  who,  without  accusation  or  proof,  indictment  or  trial, 
notice  or  hearing,  have  been  disfranchised  by  four  villains,  incorporated 
with  perpetual  succession,  whose  official  title  is  '  The  Returning  Board  of 
Louisiana.'  " 


1 68  The  Electoral  System 

the  possession  of  such  power  by  the  commission.  Against 
the  claim  that  Levissee  and  Brewster,  who  were  Federal 
officers  on  November  7,  1876,  had  been  appointed  elec- 
tors, Carpenter  very  forcibly  said : 

"  Every  lawyer  will  concede  that  a  person  forbidden  by  the 
Constitution  to  be  appointed  an  elector  is  equally  forbidden  by 
the  Constitution  to  be  an  elector  or  to  cast  a  vote  for  President 
or  Vice-President.  .  ,  .  The  provision  of  the  Constitution 
strikes  at  the  very  root  of  the  matter.  ...  In  other 
words,  he  violates  the  Constitution  by  acting  and  voting  in  the 
electoral  college. ' ' 

Votes  cast  by  such  Federal  officers  he  affirmed  to  be  no 
votes;  such  should  be  excluded  from  the  count. 

Lyman  Trumbull,  a  former  Republican  and  the  famous 
author  of  the  ironclad  twenty-second  joint  rule,  offered 
to  show  that  Kellogg  the  elector  and  Kellogg  the  gover- 
nor de  facto  were  identical;  that  the  constitution  of 
Louisiana  forbade  any  person  to  hold  more  than  one 
office  of  trust  or  profit  in  the  State,  with  the  single  ex- 
ception of  justices  of  the  peace  and  notaries  public.  Pur- 
suing the  same  line  of  argument  as  Carpenter,  he  claimed 
that  Kellogg  had  not  been  elected,  but  actually  had  seven 
thousand  less  votes  than  each  of  the  Tilden  electors.  He 
pleaded  for  the  exercise  by  the  commission  of  the  power 
to  canvass  the  vote,  which,  he  urged,  had  been  deposited 
with  the  two  Houses  of  Congress,  and  trenchantly  asked  : 
"Is  it  to  turn  out  that  this  commission  was  formed  for 
the  mere  purpose  of  doing  a  sum  in  arithmetic,  of  adding 
up  certain  figures?"  In  1873,  said  Trumbull,  both 
Houses,  as  a  result  of  the  reports  of  their  investigating 
committees,  decided  not  to  count  the  electoral  vote  of 
Louisiana,  although  Governor  Warmoth  had  given  a  cer- 
tificate in  due  form.  But  an  inquiry  by  Commissioner 
Edmunds  elicited  the  fact  that  the  Senate  committee  in 
1873  had  expressed  the  sound  opinion  that  neither  the 


The  Louisiana  Case  169 

Senate  nor  both  Houses  jointly  "have  the  power  under 
the  Constitution  to  canvass  the  returns  of  an  election, 
and  count  the  votes  to  determine  who  have  been  elected 
presidential  electors,  but  that  the  mode  and  manner  of 
choosing  the  electors  are  left  exclusively  to  the  States." 
Trumbull  having  also  argued  that  the  appointment  of 
certain  electors  was  invalid  under  the  constitution  of  the 
State  of  Louisiana,  Morton  asked  the  profoundly  inter- 
esting question  whether,  inasmuch  as  the  Federal  Consti- 
tution gives  to  the  Legislature  of  a  State  the  control  of 
the  appointment  of  electors,  it  was  competent  for  the 
State  by  her  constitution  to  control  the  Legislature  in 
the  exercise  of  that  power.  Trumbull  answered:  "I 
should  say  a  Legislature  is  bound  to  observe  the  State 
constitution  as  well  as  the  Constitution  of  the  United 
States,  unless  they  conflict." 

Shellabarger,  one  of  the  ablest  lawyers  of  his  day,  and 
an  advocate,  in  1869,  of  the  power  of  the  president  of 
the  Senate  to  count  the  votes,  made  a  cogent  argument 
in  support  of  the  Republican  objections  to  return  No. 
2  and  against  the  contentions  of  the  Democratic  counsel. 
The  main  question,  said  Shellabarger,  is  what  the  com- 
mission has  just  decided  regarding  Florida:  "whether  or 
not  it  is  competent  for  you  to  go  behind  the  action  of 
the  returning  board  of  Louisiana  for  the  purpose  of 
finding  out  what  happened  in  its  exercise  of  the  jurisdic- 
tion vested  in  it  by  statute";  and  he  cited  the  decision 
of  the  Louisiana  courts  to  show  that  the  acts  of  the  re- 
turning board  were  final.  The  real  question  had  been 
accurately  phrased  by  Judge  Miller — whether,  there  being 
a  board  competent  under  Louisiana  law  to  make  the 
returns  and  required  by  that  law  to  find  out,  declare  and 
certify  who  were  duly  elected  to  the  offices  in  the  State, 
including  the  office  of  presidential  electors,  the  commis- 
sion had  any  power  to  review  the  board's  conclusions. 
Evarts,  in  a  logical  and  powerful  argument,  showed  that 


lyo  The  Electoral  System 

the  Democrats  had  shifted  their  ground.  They  had  at 
first  insisted  that  the  commission  had  judicial  power;  and 
afterwards  that  it  had  legislative  power, — the  power  of 
the  two  Houses  of  Congress,  in  respect  to  the  election  of 
their  own  members.  Evarts  maintained  that  the  commis- 
sion had  only  the  powers  vested  in  the  two  Houses  in  the 
sole  matter  of  counting  the  votes, — "the  powers  that  the 
two  Houses  have  in  the  act  and  transaction  of  counting 
the  vote,  and  no  other  powers."  The  offer  of  evidence, 
he  argued,  included  nothing  tending  to  show  that  either 
Levissee  or  Brewster  was  ineligible  on  December  6,  1876; 
nevertheless,  assuming  them  to  have  been  ineligible, 
"they  had  been  elected,  inducted  into  the  office  of  elec- 
tors," and  the  State  could  not  be  stripped  of  its  electoral 
vote  "by  extraneous  evidence,  adduced  at  the  moment 
of  counting  the  vote,  that  a  man  was  ineligible." 

During  the  argument  of  Judge  Campbell,  who  closed 
the  case  for  the  Tilden*  electors,  an  interesting  colloquy 
took  place  between  him  and  Judge  Strong,  in  which  the 
Democratic  and  the  Republican  mind  seemed  to  occupy 
positions  the  reverse  of  those  which  would  naturally  be 
ascribed  to  them.  Judge  Strong  asked  Campbell  whether 
it  was  within  the  power  of  the  State  to  constitute  a 
tribunal  to  try  contests  between  two  sets  of  electors  who 
claimed  under  an  election. 

"  Unquestionably,"  answered  Judge  Campbell.  "  Then," 
said  Commissioner  Strong,  "  you  contend  that  the  power  of 
judging  of  the  honesty  or  accuracy  of  the  decision  of  the  re- 
turning board  is  in  the  State. 

"Campbell:  In  case  of  State  officers. 

"  Commissioner  Strong:  I  am  speaking  of  electors. 

"Campbell:  .  .  .  My  own  opinion  is  that  the  State 
has  no  jurisdiction  over  the  elector. 

"  Strong:  Cannot  review  its  own  election  for  electors? 

"Campbell:  ...  I  say  that  the  election  is  to  be  re- 
viewed and  examined  finally  by  the  two  Houses  of  Congress, 


(  UNIv 


Of 


%^jfc6uisiana  Case  171 

when  their  certificates  of  returns  come.  .  .  .  My  view 
of  these  electors  under  the  Constitution  is,  that  the  State  is  the 
instrument  and  the  agency,  and  its  laws  are  instrumental  for 
the  purpose  of  communicating  to  the  two  Houses  of  Congress 
the  election  of  electors;  and  the  two  Houses  of  Congress,  in 
determining  who  has  a  majority  of  all  the  electors,  necessarily 
can  inquire  whether  those  electors  were  fairly  chosen  or  not. '  * 

The  expanding  functions  of  Congress  include  authority 
not  only  to  count  the  electoral  votes  presented  at  the 
joint  session  of  the  two  Houses,  but  to  descend  beneath 
the  certified  return  from  the  State,  brush  aside  the  deter- 
mination of  the  State  returning  board,  and  conduct  a 
trial  of  the  question  whether  electors  had  actually  been 
elected !  This  assuredly  is  far  from  the  old  Democratic 
moorings.  Campbell  was  on  safer  ground  when  he 
added : 

"  Congress  could  create  a  tribunal  to  inquire  into  the  validity 
and  truthfulness  and  regularity  of  any  election  for  electors,  for 
the  purpose  of  determining  the  question  whether  the  votes 
cast  for  President  and  Vice-President  are  cast  by  men  compe- 
tent to  do  so.  It  is  the  only  legitimate  place  where  such  a 
tribunal  could  come  from,  because  the  power  to  be  exercised 
by  electors  affects  every  citizen  and  every  interest  in  the 
United  States;  every  State  in  this  Union  is  interested  in  that 
decision,  and  no  State  would  be  justified  in  allowing  the  de- 
termination of  such  questions  finally  to  rest  in  a  State  tribunal. " 

He  closed  his  argument  with  a  graphic  and  powerful 
description  of  affairs  in  the  State : 

"  The  State  is  in  the  possession  of  an  oligarchy  of  unscrupu- 
lous, dishonest,  corrupt,  overreaching  politicians  and  persons 
who  employ  the  powers  of  the  State  for  their  own  emolument. 
.  .  .  For  years  they  have  usurped  the  powers  of  the  State 
by  means  that  have  brought  upon  them  the  condemnation  of 
the  Senate  of  the  United  States,  of  the  House  of  Representa- 


172  The  Electoral  System  " 

tives  of  the  United  States,  and,  I  may  say,  of  the  whole  people 
of  the  United  States.  Those  practices  have  been  covered; 
immunity  has  been  granted  to  them,  because  of  their  inter- 
course and  connection  with  the  politics  and  parties  of  the 
Union;  and,  without  that  connection,  they  would  not  stand 
in  that  State  for  a  single  hour.  By  their  association  they 
have  prostrated  every  material  and  endangered  every  moral 
interest  within  the  limits  of  the  State.  .  .  .  The  rings  in 
Louisiana  have  affected  the  peace  of  this  country." 

While  the  history  of  Louisiana  during  reconstruction 
remains  to  be  fully  written,  there  exists  little  doubt  of 
the  truthfulness  and  accuracy  of  the  indictment  formu- 
lated and  presented  to  the  commission  by  the  Democratic 
counsel.  But  a  question  of  greater  and  more  profound 
interest  than  the  anarchic  state  of  affairs  in  Louisiana 
was  before  the  commission,  and  that  question  was  as  to 
the  right  of  that  body  or  of  Congress  to  revolutionize  the 
Government  of  the  United  States  by  an  investigation  of 
an  election  of  presidential  electors  within  a  State. 

The  commission  divided,  as  in  the  Florida  case,  by  a 
vote  of  eight  to  seven.  Morton,  in  his  opinion,  said: 
"An  offer  is  made  to  impeach  the  decision  of  the  return- 
ing ofificers  of  Louisiana  by  showing  that  they  threw  out 
votes  in  violation  of  law,  that  their  rulings  were  arbitrary 
and  unjust,  and  that  in  point  of  fact  the  Tilden  electors 
were  appointed."  He  voted  in  favor  of  excluding  such 
proofs  because  the  appointment  of  the  Hayes  electors 
was  duly  certified  by  the  governor  of  the  State,  and  their 
appointment  by  the  votes  of  the  people  was  declared  in 
due  form  of  law  by  the  proper  returning  ofificers  of  the 
State,  who  alone  were  duly  authorized  to  canvass,  and 
determine  the  persons  appointed  electors. 

**  The  whole  question  comes  down  to  this  simple  proposi- 
tion: Is  it  competent  for  the  two  Houses  of  Congress,  or  for 
this  commission  acting  in  their  stead,  when  counting  the  elec- 


The  Louisiana  Case  173 

toral  votes  for  President,  to  go  behind  the  decision  made  by 
the  officers  appointed  by  the  Legislature  of  the  State  for  the 
purpose  of  canvassing  and  determining  the  result  of  the  elec- 
tion, to  inquire  what  was  the  number  of  votes  cast  for  one  set 
of  candidates,  or  for  the  other;  whether  the  election  was  fairly 
conducted  and  whether  the  officers  appointed  by  the  State  to 
conduct  the  election  or  to  determine  its  results  acted  within 
the  limits  of  the  law  or  upon  sufficient  evidence.  A  majority 
of  this  commission  decided  in  the  Florida  case  that  we  had 
no  such  power,  and  I  believe  that  time  and  the  good  sense  of 
the  American  people  will  justify  the  decision  in  every  respect." 

Senator  Thurman,  on  the  contrary,  in  voting  for  the 
admission  of  the  evidence,  forcibly  said : 

*  *  I  deny  that  the  returning  board  of  Louisiana  has  any  law- 
ful existence.  I  deny  that  the  constitution  of  that  State,  or 
anything  in  the  Federal  Constitution,  confers  upon  her  Legis- 
lature power  to  create  such  a  board.  .  .  .  It  is  a  board 
consisting  of  five  persons  holding  their  offices  without  any 
limitation  of  time  and  filling  all  the  vacancies  that  occur  in 
their  own  body.  It  is,  therefore,  a  kind  of  perpetual,  self- 
preserving,  and  self-perpetuating  corporation.  .  .  .  The 
board  is  in  effect  constituted  the  State — to  govern  it  accord- 
ing to  its  own  arbitrary  will  and  discretion.  There  is  no  repub- 
lican government  in  Louisiana.  There  can  be  no  republican 
government  in  that  State  so  long  as  this  returning  board  is 
upheld.  An  oligarchy  more  corrupt,  more  odious,  more  anti- 
republican,  never  before  existed  on  this  globe." 

But  as  there  was  a  semblance  of  government  in  the  State, 
and  as  the  courts  of  the  State  had  sustained  the  validity  of 
the  legislation  under  which  the  returning  board  was  organ- 
ized, Thurman's  argument  was  unsound.  And  there  was 
a  fallacy  in  his  contention  that  inasmuch  as  Congress  had 
gone  behind  the  returns  in  1873,  the  commission,  armed 
with  like  powers,  should  ignore  the  determination  of  the 


174  The  Electoral  System 

State  board  and  hear  the  evidence  offered  by  the  Demo- 
cratic counsel.  The  evil  example  of  Congress  was  no 
guide  to  a  body  seeking  to  follow  the  Constitution.  In 
fact,  the  decision  of  the  commission  was  a  severe  arraign- 
ment of  the  Republican  policy  of  investigating  Southern 
elections. 

Frelinghuysen,  who  voted  with  the  majority,  answering 
Thurman's  objection  that  the  board  was  not  composed 
of  members  from  all  political  parties,  said:  "If  the  pro- 
vision that  the  board  must  consist  of  those  having  differ- 
ent political  opinions  were  constitutional,  which  I  much 
doubt,  the  requirement  is  clearly  only  directory"  ;  but  it 
was  beside  the  mark  to  attempt  to  pass  upon  the  consti- 
tutionality of  this  State  legislation. 

Bayard  argued  that  the  Democratic  proofs  should  be 
received.  There  was  an  offer  to  prove  that  four  persons 
only,  for  two  years  and  upwards,  had  composed  a  board 
which,  by  the  language  of  the  act,  was  to  consist  of  five 
persons ;  and  that,  although  there  were  eighty-six  thou- 
sand registered  Democratic  voters  in  Louisiana,  not  one 
of  them  had  ever  been  elected  to  fill  the  vacancy. 

"  The  case  presented  for  our  consideration  is  whether  we 
will  sustain  the  constitution  and  the  rights  of  the  State  of 
Louisiana  under  it  to  have  the  voice  of  her  people,  as  pro- 
claimed at  the  election  held  on  November  7,  1876,  hearkened 
unto  and  obeyed,  or  whether  we  will  permit  this  false  persona- 
tion of  the  State,  a  band  of  infamous  men  and  treacherous 
officials,  to  palm  off  upon  the  State  of  Louisiana  and  upon 
every  State  in  this  Union  eight  false  electoral  votes,  and  by 
such  votes  determine  the  possession  of  the  executive  power  of 
this  government  for  the  next  four  years.     .     .     . " 

Right  or  wrong,  Bayard  was  in  accord  with  Hoar, 
Wheeler,  and  Frye,  when  they  declared,  in  their  report 
to  the  House,  in  1875,  that  the  question  did  not  con- 
cern the  people  of  Louisiana  alone,  but  that  the  people  of 


The  Louisiana  Case  175 

the  United  States  had  "an  interest  in  the  question  whether 
Senators  and  Representatives  for  Louisiana,  thrust  into 
their  seats  by  illegal  means,  shall  sit  in  Congress  to  make 
laws  for  them,  and  whether  electors y  gaining  their  office  in 
like  manner,  shall  turn  the  scale  in  the  choice  of  a  President 
of  the  United  States.''  Bayard  argued  also  that  Levissee 
and  Brewster  both  held  offices  of  trust  and  profit  under 
the  United  States  on  November  7,  1876,  that  the  Federal 
Constitution  prohibited  their  appointment,  and  that  the 
provision  of  the  Constitution  was  self-enforcing.  He 
described  that  provision  as  "a  limitation  upon  the  power 
of  the  State  to  do  a  certain  act."  Nor  did  Bayard  sub- 
scribe to  the  view  that  the  Constitution  of  the  United 
States  meant  to  exalt  the  State  Legislature  over  the 
State  constitution  in  the  appointment  of  presidential 
electors. 

**  I  do  not  hold  that  the  Constitution  of  the  United  States 
contemplated  the  deposit  in  the  *  Legislature  '  of  a  State  of  the 
control  of  the  appointment  of  electors  as  a  body  distinct  from 
the  State  itself,  with  power  to  act  independently  and  regard- 
less of  the  arrangements  of  the  constitution  of  the  State.  All 
power  vested  in  the  Legislature  of  a  State  is  defined  and  limited 
by  the  State  constitution,  and  all  laws  passed  by  any  State 
Legislature  in  violation  of  the  constitution  of  a  State  are  as 
absolutely  void  as  if  passed  in  violation  of  the  Constitution  of 
the  United  States,  which  is  the  supreme  law  of  the  land.  The 
Legislature  of  a  State  being,  therefore,  merely  one  department 
of  the  State  government  and  clearly  subordinate  to  the  will  of 
the  State  as  expressed  in  its  constitution,  cannot  give  validity 
to  any  statute  which  violates  the  principles  of  republican  gov- 
ernment in  a  State  or  deprives  the  people  of  that  State  of  their 
rights  intended  to  be  secured  against  encroachment  by  any 
of  their  rulers  or  officials  by  the  terms  of  their  written  consti- 
tution and  charter  of  powers." 

Eppa  Hunton,  in  commenting  upon  the  features  of 


i;^  The  Electoral  System 

the  case   that   distinguished   it   from  the  Florida  case, 
said: 


"  In  the  first  place  it  is  offered  to  prove  that  this  canvassing 
board  was  not  legal,  because  it  should  have  consisted  of  five 
whereas  it  consisted  only  of  four.  That  these  four  persistently- 
refused  to  fill  the  board,  and  give  the  Democrats  a  represen- 
tation in  said  board,  and  that  such  refusal  was  for  the  purpose 
of  concealing  from  the  opposite  party  the  fraudulent  acts  of 
said  board  by  which  they  gave  the  returns  to  the  Hayes 
electors." 

The  report,  of  the  committee  of  the  House  of  Representa- 
tives declaring  the  action  of  the  Louisiana  returning 
board  in  1873  null  and  void  was  acquiesced  in  by  both 
Houses  of  Congress,  and  the  electoral  vote  of  Louisiana 
was  rejected  by  concurrent  action  on  the  ground,  Hunton 
said,  that  the  laws  of  the  State  had  not  been  complied 
with  in  the  canvass  and  return  of  the  votes  cast  for 
electors. 

According  to  Commissioner  Abbott,  there  was  no 
legally  constituted  returning  board  in  Louisiana,  with 
any  power  to  canvass  the  vote.  Commissioner  Hoar 
failed  to  express  any  opinion  in  the  Louisiana  case  other 
than  that  indicated  by  his  vote,  while  Commissioner 
Garfield  considered  the  conclusion  reached  by  the  com- 
mission in  the  Florida  case  as  decisive  of  the  Louisiana 
case,  there  being  no  difference  in  principle  between  the 
two  as  to  the  offer  of  proof.  The  Louisiana  Supreme 
Court,  he  asserted,  had  decided  that  a  board  of  four  per- 
sons was  the  lawful  returning  board  of  the  State,  and  the 
construction  given  by  a  State  court  to  the  statutes  of  the 
State  was  binding  upon  Federal  tribunals.  The  Louisi- 
ana courts  had  also  upheld  the  constitutionality  of  the 
law  creating  the  board.  Louisiana  had  followed  the 
method  prescribed  by  her  Legislature,  which  had  been 
reviewed  by  her  highest   court   and  declared  constitu- 


J 


The  Louisiana  Case  i77 

tional.  The  State  possessed  the  sole  authority  to  deter- 
mine who  were  her  electors.  "Certificate  No.  2  comes 
before  us,"  he  said,  "with  no  semblance  of  authority. 
.  .  .  It  is  signed  by  a  man  who  for  three  years  has 
not  even  pretended  to  be  governor."  He  took  sharp 
issue  with  Bayard,  declaring  that,  whether  the  acts  of  the 
returning  board  were  in  conflict  with  the  constitution  of 
Louisiana  or  not,  they  were  in  accordance  with  the  mode 
of  procedure  prescribed  by  her  Legislature;  "and  the 
national  Constitution  confers  upon  the  State  Legislature 
the  sole  and  exclusive  authority  to  prescribe  the  mode  of 
appointment." 

As  in  the  Florida  case,  neither  Commissioner  Edmunds 
nor  Commissioner  Payne  delivered  an  opinion.  Mr. 
Justice  Field  wrote  no  opinion  on  the  Louisiana  case, 
nor  did  Commissioner  Strong,  his  views  having  suffi- 
ciently appeared  in  the  colloquy  between  him  and  Mr. 
Justice  Campbell.  Nor  did  Commissioner  Miller  take 
any  part  in  the  discussion,  because,  as  he  afterwards  said, 
in  his  opinion  in  the  Oregon  case,  the  Louisiana  case  was 
governed  by  the  principles  laid  down  by  him  in  the 
Florida  case  and  which  had  received  the  approval  of  the 
commission. 

Great  interest  attaches  to  the  opinion  of  Mr.  Justice 
Bradley,  who  has  been  satirically  styled  the  "fifteenth" 
member  of  the  commission.  Judge  Bradley  condensed 
the  objections  to  the  first  and  third  return  from  Louisi- 
ana, asserting  that  the  first  two  objections,— that  the 
State  is  without  a  republican  form  of  government,  and 
that  Kellogg  was  not  the  governor, — had  not  been  seri- 
ously urged.  The  third  objection,  that  there  was  no 
law  in  force  in  November,  1876,  regulating  the  appoint- 
ment of  electors,  which  had  been  strenuously  argued  by 
several  of  the  Democratic  counsel,  turned,  said  Judge 
Bradley,  upon  the  question  whether  the  presidential 
electoral   law  of  1868  was  or  was  not  repealed  by  the 


178  The  Electoral  System 

general  election  law  of  1872;  and  after  reviewing  the 
statutes  he  declared  the  earlier  law  unrepealed,  except  as 
to  the  mode  of  canvassing  the  returns,  which  was  to  be 
performed  by  the  returning  board  created  by  the  act  of 
1872.  He  failed,  he  said,  to  perceive  the  unconstitu- 
tionality of  the  law  creating  the  returning  board,  for  he 
considered  that  question  had  been  settled  by  the  Louisi- 
ana Supreme  Court.  "The  objection  that  there  were 
only  four  members  constituting  the  board  at  the  canvass 
in  December  last,"  he  said,  "is  met  by  the  general  rule 
of  law  in  regard  to  public  bodies,  that  the  happening  of 
a  vacancy  does  not  destroy  the  body  if  a  quorum  still 
remain."  With  the  motives  that  inspired  the  Republican 
members  to  leave  the  vacancy  unfilled,  he  considered  the 
commission  had  nothing  to  do.  "The  question  with 
which  we  have  to  do  is  a  question  of  power,  of  legal 
authority  in  four  members  to  act.  And  of  this  I  have 
no  doubt."  As  to  the  general  charge  of  fraud  in  the 
proceedings  of  that  board,  he  deemed  his  views  in  the 
Florida  case  an  adequate  answer ;  the  commission  could 
not  go  behind  the  returns.  On  two  points  he  declared 
himself  perfectly  clear:  First,  that  the  two  Houses  did 
not  constitute  a  canvassing  board  for  the  purpose  of  in- 
vestigating and  deciding  on  the  results  of  an  election  for 
electors  in  a  State.  The  proposed  act  of  1800  carefully 
excluded  any  inquiry  into  the  number  of  votes  on  which 
an  elector  was  elected,  and  it  could  not  well  be  pretended 
that  the  Houses  had  power  to  go  farther  into  the  inquiry 
than  was  proposed  by  that  bill.  Secondly,  they  did  not 
constitute  a  tribunal  or  court  for  trying  the  validity  of 
election  returns  and  sitting  in  judgment  on  the  legality 
of  the  proceedings  in  the  course  of  the  election.  Never- 
theless, Congress  had  in  previous  years  usurped  this 
power,  and  one  of  the  strongest  pleas  made  by  the 
Democratic  counsel  was  that  the  commission  should 
follow  the  course  of  Congress.      The  following  quota- 


The  Louisiana  Case  179 

tions  from  Judge  Bradley's  opinion  are  profoundly  inter- 
esting: 

'  *  Whether  the  legislative  power  of  the  Government  might 
not,  by  law,  make  provision  for  an  investigation  into  frauds 
and  illegalities,  I  do  not  undertake  to  decide.  It  cannot  be 
done,  in  my  judgment,  by  any  agency  of  the  Federal  Govern- 
ment without  legislative  regulation.  The  necessity  of  an 
orderly  mode  of  taking  evidence  and  giving  opportunity  to 
cross-examine  witnesses  would  require  the  interposition  of 
law.  The  ordinary  power  of  the  two  Houses  as  legislative 
bodies,  by  which  they  investigate  facts  through  the  agency  of 
committees,  is  illy  adapted  to  such  an  inquiry.  It  seems  to 
me,  however,  the  better  conclusion,  that  the  jurisdiction  of 
the  whole  matter  belongs  exclusively  to  the  States.  Let  them 
take  care  to  protect  themselves  from  the  perpetration  of 
frauds.  They  need  no  guardians.  They  are  able,  and  better 
able  than  Congress,  to  create  every  kind  of  political  machinery 
which  human  prudence  can  contrive,  for  circumventing  fraud, 
and  preserving  their  true  voice  and  vote  in  the  presidential 
election." 

His   decision,   therefore,   was  for  the    rejection    of   the 
evidence. 

Judge  Bradley  declared  that  the  alleged  ineligibility 
under  State  laws  was  a  matter  beyond  the  pale  of  con- 
sideration by  the  commission.     He  further  said  : 

"  Two  of  the  electors,  however,  Levissee  and  Brewster,  are 
alleged  to  have  held  offices  of  trust  and  profit  under  the  United 
States,  when  the  election  was  held  on  the  7th  of  November. 
It  is  not  alleged  that  they  did  so  on  the  6th  of  December, 
when  they  gave  their  votes.  Being  absent  when  the  electoral 
college  met,  their  places  were  declared  vacant,  and  the  college 
itself  proceeded  to  reappoint  them  under  the  law,  and  sent 
for  them.  They  then  appeared  and  took  their  seats.  So 
that,  in  point  of  fact,  the  objection  does  not  meet  the  case, 
unless  their  being  Federal  office-holders  at  the  time  of  the 
election  affects  it. 


I  So  The  Electoral  System 

**  Though  not  necessary  to  the  decision  of  this  case,  I  have 
re-examined  the  question  of  constitutional  ineligibility  since 
the  Florida  case  was  disposed  of,  and  must  say  that  I  am  not 
entirely  satisfied  with  the  conclusion  to  which  I  then  came, 
namely,  that  if  a  disqualified  elector  casts  his  vote  when  dis- 
qualified, the  objection  cannot  be  taken.  I  still  think  that 
this  disqualification  at  the  time  of  his  election  is  not  material, 
if  such  disqualification  ceases  before  he  acts  as  an  elector. 
But,  as  at  present  advised,  I  am  inclined  to  the  opinion  that  if 
constitutionally  disqualified  when  he  casts  his  vote,  such  vote 
ought  not  to  be  counted. 

"  I  still  think,  as  I  thought  in  discussing  the  Florida  case, 
that  the  form  of  the  constitutional  prohibition  is  not  material ; 
that  it  is  all  one,  whether  the  prohibition  is  that  a  Federal 
officer  shall  not  be  an  elector,  or  that  he  shall  not  be  appointed 
an  elector.  The  spirit  and  object  of  the  prohibition  is  to 
make  office-holding  under  the  Federal  Government  a  disquali- 
fication. That  is  all.  And  this  is  the  more  apparent  when 
we  recollect  the  reasons  for  it.  When  the  Constitution  was 
framed,  the  great  object  of  creating  the  office  of  electors  to 
elect  the  President  and  Vice-President  was  to  remove  this 
great  duty  as  far  as  possible  from  the  influence  of  popular 
passion  and  prejudice,  and  to  place  it  in  the  hands  of  men  of 
wisdom  and  discretion,  having  a  knowledge  of  public  affairs 
and  public  men.  The  idea  was  that  they  were  to  act  with 
freedom  and  independence.  The  jealousy  which  was  mani- 
fested in  the  convention  against  the  apprehended  influence 
and  power  of  the  General  Government,  and  especially  of  the 
legislative  branch,  induced  the  prohibition  in  question.  It 
was  feared  that  the  members  of  the  Houses  of  Congress  and 
persons  holding  office  under  the  Government  would  be  pecul- 
iarly subject  to  these  influences  in  exercising  the  power  of 
voting  for  chief  magistrate.  It  was  not  in  the  process  of  ap- 
pointment that  this  influence  was  dreaded;  but  in  the  effect  it 
would  have  on  the  elector  himself  in  giving  his  vote. 

"  It  seems  to  me,  therefore,  that  if  a  person  appointed  an 
elector  has  no  official  connection  with  the  Federal  Government 
when  he  gives  his  vote,  such  vote  cannot  be  justly  excepted 


The  Louisiana  Case  i8i 

to.  And  that  substantial  effect  is  given  to  the  constitutional 
disqualification  if  the  electoral  vote  given  by  such  officer  is 
rejected.  And  my  present  impression  is  that  it  should  be 
rejected. 

"  Circumstances,  it  is  true,  have  greatly  changed  since  the 
Constitution  was  adopted.  Instead  of  electors  being,  as  it  was 
supposed  they  would  be,  invested  with  power  to  act  on  the 
dictates  of  their  own  judgment  and  discretion  in  choosing  a 
President,  they  have  come  to  be  mere  puppets,  elected  to  ex- 
press the  pre-ordained  will  of  the  political  party  that  elects 
them.  The  matter  of  ineligibility  has  come  to  be  really  a 
matter  of  no  importance,  except  as  it  still  stands  in  the  Con- 
stitution, and  is  to  be  interpreted  as  it  was  understood  when 
the  Constitution  was  adopted.  Hence  we  must  ascertain,  if 
we  can,  what  was  its  original  design  and  meaning,  without 
attempting  to  stretch  or  enlarge  its  force." 

Mr.  Justice  Clifford,  the  president  of  the  commission, 
believing  further  discussion  useless,  rendered  no  opinion 
either  in  the  Louisiana  or  the  Oregon  case. 

The  commission,  on  February  i6,  1877,  by  a  vote  of 
eight  to  seven,  decided  that  evidence  that  the  returning 
board  was  unconstitutional  and  its  acts  null  and  void  was 
inadmissible,  and  that  an  offer  to  prove  that  it  was  ille- 
gally constituted  or  possessed  of  no  jurisdiction  should 
also  be  rejected.  It  declined  to  receive  testimony  show- 
ing that  frauds  had  been  committed  in  the  returns  or 
that  the  votes  cast  had  never  been  canvassed  by  the 
returning  board,  and  also  refused  to  receive  evidence 
tending  to  prove  the  ineligibility  of  any  of  the  electors, 
the  vote  upon  each  proposition  being  eight  to  seven.  It 
upheld  the  doctrine  announced  in  the  Florida  case,  that 
it  had  no  jurisdiction  to  go  behind  the  determination  of 
the  State  returning  officers. 

Mr.  Justice  Bradley  alone,  of  the  majority  of  the 
commission,  expressed  any  opinion  upon  the  alleged  in- 
eligibility of    Levissee  or   Brewster.     Neither    Morton, 


1 82  The  Electoral  System 

Frelinghuysen,  nor  Garfield,  the  only  others  of  the 
majority  who  wrote  opinions  in  the  Louisiana  case, 
alluded  to  the  subject ;  whereas  all  of  the  minority  mem- 
bers who  wrote  agreed  that  the  testimony  as  to  ineligibil- 
ity should  be  received.  Thurman  declared  that  the 
Constitution  of  the  United  States  made  such  officers 
ineligible  not  merely  to  hold  an  office  or  trust,  but  to  be 
appointed  to  the  office  or  trust.  Nor  did  his  perusal  of 
the  Louisiana  statutes  reveal  to  him  the  source  of  the 
power  exercised  by  the  other  electors  to  fill  vacancies  in 
the  college.  Bayard,  after  reviewing  at  length  the  pro- 
visions of  the  Louisiana  statutes,  reached  the  conclusion 
that  "no  statute  exists  authorizing  the  filling  of  a  vacancy 
in  the  office  of  elector";  and,  even  were  there  such  a 
statute,  there  were  no  vacancies,  as  the  men  were  ineligi- 
ble, and  their  attempted  appointment  utterly  void. 
Hunton  coincided  with  Thurman  and  Bayard  and  quoted 
extensively  from  that  part  of  Carpenter's  address  in 
which  the  latter  urged  that,  in  any  event,  the  votes  of 
these  two  Hayes  electors  must  be  rejected.  It  is 
difficult  to  explain  the  extraordinary  divergence  of 
opinion  between  the  Democratic  and  the  Republican 
commissioners,  all  men  of  disciplined  faculties  and 
trained  in  the  investigation  and  analysis  of  facts;  it, 
indeed,  shows,  as  Judge  Bradley  said,  that  "the  pass- 
age of  some  law  regulating  the  matter  is  on  all  ac- 
counts desirable."  The  Louisiana  case,  like  the  Florida 
case,  illustrates  the  folly  as  well  as  the  danger  of  entrust- 
ing the  decision  of  a  contested  presidential  election  to 
any  tribunal,  however  wise  or  impartial  it  is  assumed  to 
be,  which  is  not  governed  and  controlled  by  positive 
statutory  regulations  prescribed  in  advance.  There  was 
no  existing  law  to  govern  the  count ;  and,  as  Mr.  Blaine 
well  said,  in  his  Twenty  Years  of  Congress,  it  is  in  the 
nature  of  things  impossible,  to  constitute,  after  an  elec- 
tion, a  commission  whose  decision  will  be  accepted  by 


The  Louisiana  Case  183 

both  political  organizations  as  impartial.  The  decisions 
of  such  a  commission  can  hardly  be  impartial.  The  de- 
cision of  the  commission  that  the  certificates  of  the  Hayes 
electors  were  the  true  vote  of  Louisiana  was  reported  to 
the  two  Houses  and  the  electoral  count  was  resumed  by 
them  on  February  19th.  Upon  objection  to  the  deci- 
sion, the  two  Houses  separated.  The  Senate,  by  a  vote 
of  41  to  28,  sustained  the  decision,  but  the  House — 173 
to  99  (18  not  voting) — voted  that  the  electoral  votes 
cast  by  the  Hayes  electors  ought  not  to  be  counted.  As 
in  the  case  of  Florida,  the  vote  in  each  House  was  a 
strict  party  one,  save  that  two  Republicans  in  the  House 
of  Representatives  voted  with  the  Democrats. 


CHAPTER   VIII 

THE   OREGON   CASE— THE   SOUTH   CAROLINA   CASE 

THE  Oregon  count  was  reached  in  the  joint  session  of 
the  two  Houses  on  February  2ist,  and  at  once  re- 
ferred to  the  commission. 

The  essential  question  presented  by  the  Florida  and 
the  Louisiana  returns  was  whether  the  Electoral  Com- 
mission or  the  Houses  of  Congress  had  the  power  to  go 
behind  the  determination  of  the  highest  returning  board 
of  the  State.  The  decision  of  the  majority  of  the  com- 
mission was  that  the  determination  of  a  State  returning 
board  was  unimpeachable  and  that  any  attempt  to  inquire 
into  the  facts  certified  by  it  was  beyond  the  competency 
of  the  commission  or  Congress.  Such  an  inquiry  would 
be  an  impertinence, — a  trespass  upon  the  prerogatives  of 
the  State.  Incidentally  the  question  of  the  eligibility  of 
electors  was  considered.  The  Oregon  case  presented  this 
same  question,  but  in  a  different  form.  Here  the  issue 
was  sharply  raised  and  exhaustively  debated  whether  the 
Constitution  of  the  United  States  did  not  so  absolutely 
forbid  the  appointment  of  an  elector  who  was  a  Federal 
officer  as  to  render  every  stage  of  the  proceedings  cul- 
minating in  his  appointment  null  and  void.  If  the  ap- 
pointment was  void  ab  initio^  it  was  argued  that  no 
vacancy  whatever  existed  to  be  filled  by  the  electors  who 
had  been  legally  appointed,  because  an  office  which  never 
had  an  incumbent  could  not  become  vacant  by  the  pre- 
tended resignation  or  refusal  to  act  of  one  who  had  no 
title  as  elector. 

184 


The  Oregon  Case  185 

The  principles  controlling  the  decision  of  the  bare 
majority  of  the  commission  in  the  two  earlier  cases  are 
lucidly  stated  in  the  argument  of  Richard  T.  Merrick,  one 
of  the  counsel  for  Mr.  Tilden  in  the  Oregon  case. 

'  *  You  go  behind  the  certificate  [of  the  governor]  .  .  . 
until  you  find  some  authentication  of  the  fact  with  reference 
to  which  you  are  inquiring,  made  under  the  authority  and  by 
virtue  of  a  power  in  the  State  herself.  When,  in  the  case  of 
Florida  and  Louisiana,  you  passed  by  the  certificate  of  the 
governor,  given  in  obedience  to  the  act  of  Congress,  and 
found  yourselves  confronted  with  the  results  of  a  returning 
board,  you  said:  *  Here  we  must  stop,  for  here  the  State  has 
challenged  Federal  power,  and  bade  it  take  no  further  step  in 
invading  the  State  and  the  matters  of  self-government.'  It 
was  not  the  result  of  the  canvass;  it  was  not  any  virtue  in 
the  board;  it  was  not  because  of  any  sanctity  in  Wells  or 
Casanave  or  their  associates,  but  it  was  because  when  you 
reached  them  you  reached  the  broad  seal  of  the  State,  affixed 
as  evidence  to  a  State  fact,  under  State  law,  and  by  State 
authority.  .  .  .  The  Federal  Government,  speaking,  as  I 
understand  your  decisions,  through  the  adjudications  of  this 
tribunal,  has  said  that  as  the  appointment  of  the  electors  is  an 
office  given  to  the  States  by  special  grant  of  power,  ...  as 
the  appointment  of  the  electors  is  a  power  in  the  States,  and 
the  States  are  required  to  exercise  that  power,  when  they  have 
done  so,  we  will  go  no  further  into  the  inquiry  as  to  the  pro- 
priety of  State  action  than  the  solemn  and  great  seal  of  the 
State,  whenever  we  find  it  affixed  to  the  ultimate  fact  under 
the  authority  of  State  law,  and  by  the  sanction  of  the  State 
organization." 

Evarts  had  previously  addressed  the  commission  in 
similar  strain,  the  difference  being  that  Merrick  clearly 
sums  up  the  decision  reached  by  that  body,  while  Evarts 
states  it  as  the  thesis  successfully  maintained  by  the 
Hayes  counsel. 

**  We  laid  down  the  proposition  that  the  ultimate  fact  under 


1 86  The  Electoral  System 

the  laws  of  the  State  in  completion  of  the  election  by  the  cer- 
tification of  boards  or  officers  charged  with  the  completion  of 
the  final  canvass  was  a  point  beyond  which,  in  looking  into 
the  transactions  of  the  State,  the  Federal  Government  could 
not  go.  We  laid  down  at  the  same  time  the  further  proposi- 
tion that  this  conclusion  of  the  State's  action  was  the  principal 
fact  that,  under  the  legislation  of  Congress,  was  made  the  sub- 
ject of  any  lawful  certification,  and  that,  as  that  principal  fact 
could  not  be  overreached  by  any  previous  inquiry  into  the 
transaction  of  the  State,  so  that  principal  fact  could  not  be 
disparaged  or  falsified  by  any  congressional  authority  exer- 
cised in  certification  of  that  fact. 

"  The  proposition  [continued  Mr.  Evarts],  as  we  then  laid 
it  down  for  Florida,  we  adhered  to  in  the  case  of  Louisi- 
ana, and  ...  we  adhere  to  in  the  case  of  Oregon.  We 
find  in  Oregon,  as  in  Florida  or  Louisiana,  that  by  its  laws 
there  is  some  final  ministerial  canvass,  which,  completed, 
shows  what  the  election  was;  and  we  need  only  to  look  into 
the  laws  of  this  State,  as  of  the  other  States,  to  see  whether 
the  apparent  canvassing  board  was  one  that  had  such  authority 
under  the  laws  of  the  State." 

In  the  Oregon  case  there  was  no  dispute  as  to  the 
facts.  No  one  denied  that  the  three  Hayes  electors  had 
a  plurality  of  the  popular  vote.  The  crux  of  the  contro- 
versy was  whether  J.  W.  Watts,  who  received  more  than 
a  thousand  majority  over  his  highest  Democratic  com- 
petitor, but  who  at  the  time  of  the  November  election, 
as  was  shown  by  the  testimony  taken  before  the  commis- 
sion, was  postmaster  in  the  town  of  La  Fayette,  in  that 
State  (which  office  he  resigned  on  November  13th,  his 
resignation  being  immediately  accepted  by  the  Postmas- 
ter-General), was,  under  the  Constitution  of  the  United 
States,  eligible  either  to  be  voted  for  at  the  popular  elec- 
tion or  to  be  appointed  an  elector.  The  Secretary  of  the 
State  of  Oregon,  who,  according  to  the  decision  of  a  ma- 
jority of  the  commission,  constituted  the  sole  canvassing 


The  Oregon  Case  187 

authority  of  the  State  on  December  6,  1876,  canvassed  the 
vote  for  presidential  electors  in  the  presence  of  the  gov- 
ernor and  prepared  a  tabulated  statement  of  the  returns 
from  the  various  counties,  which  he  placed  on  file  in  his 
office,  as  a  complete  and  lawful  canvass  showing  that 
Watts,  Odell,  and  Cartwright  had  been  appointed  electors 
for  the  State  of  Oregon.  All  this  appeared  by  an  official 
certificate  under  the  seal  of  the  State,  signed  by  him  and 
delivered  by  him  to  the  Hayes  electors  and  forwarded  by 
them  to  the  president  of  the  Senate,  with  their  votes. 
On  the  morning  of  December  6th  the  governor  of  the 
State  issued  three  certificates,  in  each  of  which  he  stated 
that  Odell  and  Cartwright,  together  with  E.  A.  Cronin, 
were  the  three  eligible  persons  receiving  the  highest  num- 
ber of  votes,  and  that  they  were  duly  appointed  electors. 
Cronin  received  these  certificates  from  the  governor  and, 
after  communicating  their  contents  to  Odell,  Cartwright, 
and  Watts,  upon  their  refusal  to  recognize  him  as  an 
elector,  appointed  two  persons  to  act  as  electors,  instead 
of  Odell  and  Cartwright,  and  these  three  voted,  Cronin 
for  Tilden  and  the  remaining  two  for  Hayes.  The  gov- 
ernor refused  to  give  Watts  a  certificate  of  election  be- 
cause he  deemed  Watts  ineligible,  but  the  Secretary  of 
State,  as  the  State  canvassing  officer,  having  issued  a 
certificate  to  Odell,  Cartwright,  and  Watts,  they  met 
together  as  an  electoral  college  on  December  6th.  Watts 
resigned  the  office  of  elector,  but  was  immediately  elected 
by  his  two  associates  to  fill  the  so-called  vacancy  created 
by  his  resignation,  and  the  three  thereupon  cast  the 
vote  of  the  State  for  Hayes  for  President  and  Wheeler 
for  Vice-President. 

Two  antagonistic  certificates  or  returns  came  to  the 
two  Houses  of  Congress  in  joint  session.  The  first  was 
signed  by  Odell,  Watts,  and  Cartwright,  and  to  it  were 
appended  the  certificate  of  the  Secretary  of  State  and  the 
tabular  list  or  abstract  of  the  votes  cast  at  the  election  on 


1 88  The  Electoral  System 

November  7th,  for  presidential  electors,  conclusively 
showing  that  they  each  received  the  highest  number  of 
votes  in  the  State.  The  second  return  was  signed  by 
Cronin,  a  Democrat,  and  his  associates,  Miller  and  Parker, 
Republicans,  as  electors,  and  was  certified  by  the  gover- 
nor of  the  State.  Under  the  Electoral  Commission  law, 
there  being  two  conflicting  returns,  the  case  was  referred 
to  the  Electoral  Commission. 

The  laws  of  Oregon  did  not  provide  for  a  board  of 
State  canvassers,  but  directed  the  Secretary  of  State,  in 
the  presence  of  the  governor,  to  proceed,  within  thirty 
days  after  an  election,  to  canvass  the  votes  given  for  State 
officers  and  members  of  Congress,  and  it  directed,  with 
regard  to  presidential  electors,  that  the  votes  for  electors 
should  be  canvassed  in  the.  same  manner  as  those  for 
members  of  Congress.  It  then  provided  that  the  Secre- 
tary of  State  should  prepare  two  lists  of  the  names  of 
the  electors  elected  and  affix  the  seal  of  the  State  to  the 
same,  and  that  the  lists  signed  by  the  governor  and  the 
secretary  should  be  transmitted  to  the  college  of  electors 
at  the  hour  of  their  meeting  on  the  first  Wednesday  of 
December.  The  Oregon  statute  further  provided:  "If 
there  shall  be  any  vacancy  in  the  office  of  an  elector  oc- 
casioned by  death,. refusal  to  act,  neglect  to  attend,  or 
otherwise,  the  electors  present  shall  immediately  proceed 
to  fill  by  viva  voce  and  plurality  of  votes  such  vacancy  in 
the  electoral  college." 

The  charges  of  fraud  and  intimidation  in  Florida  and 
Louisiana  were  never  fully  proved.  Opinions  may  differ 
as  to  whether  the  action  of  the  board  of  canvassers  of 
either  of  those  States  was  in  accordance  with  the  true 
and  honest  vote  of  the  people  of  the  State.  But  the  in- 
disputable fact  in  the  case  of  Oregon  was  that  Watts  was 
the  choice  of  a  majority  of  the  voters.  The  substitution 
of  Cronin,  who  received  a  minority  vote,  as  an  elector 
in    Watts'   place,   would  have  defeated  the  will  of  the 


The  Oregon  Case  189 

people.  The  claim  was  seriously  argued  by  some  of  the 
Democratic  counsel  that  the  vote  for  Watts  was  void 
because  of  his  ineligibility,  and  that  Cronin,  the  next 
highest  candidate,  was  for  that  reason  chosen  an  elector. 
It  is  to  the  honor  of  the  Democratic  members  of  the 
Electoral  Commission  that  they  declined  to  adopt  this 
view.  As  was  well  said  by  Commissioner  Bayard:  "The 
underlying  theory  of  our  republican  rule  is  the  residence 
of  power  in  the  majority.  That  minority  candidates 
should  fill  places  by  popular  election  is  contrary  to  our 
American  theory,  although  sometimes,  by  constitutional 
arrangements,  such  a  result  is  reached."  The  Democrats 
upon  the  commission  were  unwilling  to  vote  to  seat  a 
minority  candidate  because  of  the  ineligibility  of  his  op- 
ponent, in  the  absence  of  express  provision  in  the  law  of 
the  State  compelling  them  to  do  so. 

The  reasoning  upon  which  the  Republican  counsel 
predicated  their  arguments  for  the  acceptance  of  the  re- 
turn signed  by  the  Hayes  electors  was  briefly  that,  under 
the  statutes  of  Oregon,  the  Secretary  of  the  State  was 
the  final  canvassing  officer,  whose  functions  were  those 
of  the  State  canvassing  board  in  Florida  and  Louisiana; 
that  his  decision  was  conclusive  as  to  the  result  of  the 
State  election,  and  showed  that  the  three  Hayes  electors 
had  a  majority  of  the  popular  vote;  that  the  governor 
of  the  State  had  no  jurisdiction  to  pass  upon  the  question 
of  Watts'  ineligibility  and  no  lawful  right  to  withhold 
from  the  three  Hayes  electors  the  certificate  required  by 
the  Act  of  1792;  that  the  governor's  certificate  was  not 
essential  to  complete  the  "appointment"  of  electors; 
that  the  certificate  was  a  statutory  and  not  a  constitu- 
tional requirement ;  that  the  certificate  was  impeachable ; 
that  Cronin  was  a  minority  candidate;  that  the  governor 
could  not,  by  delivering  him  a  certificate,  defeat  the 
popular  will;  and  that,  whatever  might  be  the  correct 
theory  as  to  Watts'  position,  the  rules  of  law  would  not 


iQo  The  Electoral  System 

make  a  defeated  candidate  the  successful  one,  even  if  his 
adversary  were  ineligible  to  office.  The  argument  as 
far  as  this  point  seems  impregnable,  and  the  last  of  these 
contentions,  namely,  that  the  ineligibility  of  a  candidate 
having  the  highest  vote  would  not  elect  one  who  had  a 
smaller  vote,  was  accepted  by  all  the  members  of  the 
Electoral  Commission.  This  is  the  only  proposition 
upon  which  they  were  unanimous. 

But  if  Watts  were  ineligible,  and  Cronin  were  not 
elected,  only  two  of  the  three  electors  to  whom  Oregon 
was  entitled  would  have  been  seated  in  the  electoral 
college.  Hence  it  was  necessary  for  the  Republicans  to 
establish  that  the  fact  that  Watts  held  the  postmaster- 
ship  on  November  7th  was  unimportant.  Here  argu- 
ments diverged  into  several  paths. 

Watts  had  unquestionably  resigned  his  office  and  his 
resignation  had  been  accepted  before  the  day  when  the 
electors  assembled  to  vote  for  President  and  Vice-Presi- 
dent, and  this  resignation,  it  was  argued,  created  a 
"vacancy"  in  the  electoral  college  which  his  two  asso- 
ciates could  fill,  and  which  was  actually  filled  on  Decem- 
ber 6th,  by  their  electing  Watts  himself  to  the  place 
made  vacant  by  his  resignation.  The  law  of  Oregon, 
counsel  said,  authorized  them  to  fill  the  vacancy,  and 
when  Watts  was  selected  by  Odell  and  Cartwright  he  was 
no  longer  ineligible,  as  he  had  ceased  to  be  postmaster. 
The  language  of  the  Oregon  statute  was : 

"The  electors  of  President  and  Vice-President  shall 
convene  at  the  seat  of  government  on  the  first  Wednesday 
of  December  next  after  their  election,  at  the  hour  of 
twelve  of  the  clock  at  noon  of  that  day,  and  if  there  shall 
be  any  vacancy  in  the  office  of  an  elector,  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise,  the 
electors  present  shall  immediately  proceed  to  fill,  by  viva 
voce^  and  plurality  of  votes,  such  vacancy  in  the  electoral 
college,  and  when  all  the  electors  shall  appear,  or  the  vacan- 


The  Oregon  Case  191 

cies,  if  any,  shall  have  been  filled  as  above  provided,  such 
electors  shall  proceed  to  perform  the  duties  required  of  them 
by  the  Constitution  and  laws  of  the  United  States." 

Another  line  of  argument  by  which  Watts'  title  was 
supported  was  that  the  people  of  Oregon  had  voted  for 
him  without  knowledge  of  his  ineligibility;  that  the 
highest  canvassing  official  of  the  State  (the  Secretary  of 
State)  had  given  him  a  certificate  of  election ;  that  he 
thereby  became  a  de  facto  if  not  also  a  de  jure  elector ; 
that  neither  the  laws  of  the  United  States  nor  of  the 
State  ordained  any  tribunal  to  try  the  question  of  his 
title  to  office,  and  that  he  was  therefore  legally  appointed. 

The  Democratic  lawyers  controverted  both  of  these 
positions,  dwelling  with  emphasis  upon  the  express  lan- 
guage of  the  Federal  Constitution  which  forbade  the  ap- 
pointment as  an  elector  of  any  person  holding  an  office 
of  trust  or  profit  under  the  United  States  Government, 
a  provision  they  declared  to  be  self-executing,  rendering 
Watts'  appointment  null  and  void.  And  they  further 
argued  with  great  cogency  that,  if  Watts  was  ineligible 
when  voted  for  on  November  7th,  there  was,  within  the 
meaning  of  the  Oregon  statute,  no  vacancy  whatever  in 
the  electoral  office  on  December  6th,  because  a  person 
who  was  ineligible  could  not  resign  an  office  he  never 
held  and  thereby  create  a  vacancy;  and  they  quoted, 
among  other  authorities,  the  language  of  Lord  Chief 
Justice  Cockburn  that  "a  man  cannot  resign  that  which 
he  is  not  entitled  to  and  which  he  has  no  right  to 
occupy."  Merrick,  in  particular,  commented  upon  the 
terms  "vacancy",  "occasioned."  Not  any  vacancy  exist- 
ing^ but  a  vacancy  occasioned.  Apart  from  the  rule 
"noscitur  a  sociis,''  which  the  Republicans  contended 
was  too  narrow  and  technical,  he  argued  that  any  vacancy 
might  have  been  meant  if  the  phrase  commencing  with 
the  word  *  *  occasioned"  had  been  omitted  altogether.    To 


192  The  Electoral  System 

the  argument  that  Watts  was  de  facto  if  not  de  jure  an 
elector,  having  been  so  declared  by  the  State  canvassing 
authority  (the  Secretary  of  State,  according  to  the  Re- 
publican counsel),  the  Democratic  counsel  retorted  that 
both  the  governor  and  secretary  were  the  State  canvass- 
ing board,  that  Cronin  held  their  certificate,  and  was 
therefore  de  facto  an  elector.  The  governor,  they  con- 
tended, would  have  violated  his  oath  of  ofifice  had  he 
given  a  certificate  to  an  ineligible  elector. 

The  commission,  by  the  usual  vote  of  eight  to  seven, 
upheld  the  certificate  emanating  from  the  Secretary  of 
State,  declaring  that  Odell,  Cartwright,  and  Watts  had 
the  highest  votes,  and  it  therefore  gave  the  three  electoral 
votes  of  the  State  to  Hayes  and  Wheeler.  Unquestion- 
ably the  commission  was  right  in  holding  that  the  gover- 
nor's certificate  was  not  conclusive.  Merrick  had  said 
that  "when  the  bark  of  the  counsel  on  the  other  side  was 
tossed  against  the  Scylla  of  Florida,  the  pilot  looked 
ahead  to  the  Charybdis  that  threatened  peril  in  Oregon," 
and  had  added  that  "adroitly  as  he  may  have  led  on  his 
way,  if  this  commission  adhere  to  the  course  to  which  the 
helm  was  set  to  shun  the  reefs  of  Florida,  the  bark  must 
be  wrecked  on  those  of  Oregon. "  In  the  Florida  case  the 
commission  decided,  he  said,  that  it  was  not  competent, 
under  the  Constitution  and  the  law  as  it  existed  when 
the  commission  was  created, 

"to  go  into  evidence  aliunde  the  papers  opened  by  the  presi- 
dent of  the  Senate  in  the  presence  of  the  two  Houses,  to  prove 
that  other  persons  than  those  regularly  certified  to  by  the 
governor  of  the  State  of  Florida  on,  and  according  to,  the  de- 
termination and  declaration  of  their  appointment  by  the  board 
of  State  canvassers  of  said  State  prior  to  the  time  required  for 
the  performance  of  their  duties,  had  been  appointed  electors, 
or  by  counter-proof  to  show  that  they  had  not. ' ' 

In  the  Louisiana  case,  continued  Merrick,  these  identical 


The  Oregon  Case  193 

words  were  repeated  in  the  decision.  He  himself  ad- 
mitted that  the  governor's  certificate  was  not  unimpeach- 
able, for  that  was  not  given  in  the  discharge  of  a  State 
duty  confided  to  him  by  State  law,  but  in  response  to  an 
act  of  Congress  which  was  simply  a  Federal  request.  But 
he  argued  that  the  governor's  certificate  was  conclu- 
sive evidence  of  title,  unless  impeached  by  a  judicial 
proceeding. 

**  Suppose  that  the  governor  issues  his  certificate,  what  is 
the  effect  of  that  certificate  when  issued?  When  he  has  exer- 
cised his  power,  and  issued  his  certificate,  and  affixed  the  seal 
of  the  State  to  the  certificate,  that  certificate,  so  accompanied 
by  the  seal,  is, conclusive  evidence  of  the  title  and  cannot  be 
questioned  except  in  a  regular  legal  proceeding  for  the  pur- 
pose of  invalidating  the  commission.  Such  was  the  decision 
of  the  court  of  last  resort  in  Massachusetts  upon  questions  sub- 
mitted to  it  by  the  executive  department  of  the  government." 

Nor  are  the  opinions  of  the  majority  of  the  commission 
entirely  satisfactory.  Morton  held  that  if  Watts  was 
eligible  on  the  6th  of  December  when  the  electoral 
college  voted,  having  previously  resigned  his  office  of 
postmaster,  it  was  of  no  importance  that  he  had  been 
postmaster  when  voted  for  in  November.  Falling  back 
upon  the  views  expressed  by  him  in  the  Florida  and  in 
the  Louisiana  case,  he  considered  Watts'  title  good  de 
facto  and  de  jure,  but  said  that  as  the  college  of  electors 
was  expressly  authorized  by  law  to  fill  "any  vacancy  in 
the  office  of  an  elector,  occasioned  by  death,  refusal  to 
act,  neglect  to  attend  or  otherwise,"  the  vacancy  created 
by  Watts'  resignation  had  been  filled  by  his  appointment 
by  Odell  and  Cartwright,  at  a  time  when  his  disqualifica- 
tion had  ceased.  He  construed  the  word  "otherwise" 
as  broad  enough  to  cover  vacancies  ab  initio,  or  cases 
where  there  had  been  no  appointment.     He  declared  the 


194  The  Electoral  System 

Secretary  of  State  the  sole  canvassing  authority  under  the 
laws  of  Oregon. 

* '  When  the  secretary  has  canvassed,  certified,  and  returned 
the  votes  of  electors  to  his  office,  their  appointment  is  com- 
plete. All  that  the  governor  has  to  do  with  the  matter  there- 
after under  the  statute  is  purely  ministerial.  He  has  no 
judicial  power  upon  the  subject.  He  has  no  discretion  what- 
ever reposed  in  him  by  the  law." 

His  failure  to  give  the  certificate  required  by  the  Act  of 
1792  was  of  no  moment.  The  certificate  he  gave  to 
Cronin  could  not  stand  against  the  facts  as  certified  by 
the  highest  authority  of  the  State. 

"  The  question  of  eligibility  of  electors  belongs  to  the  States, 
and  if  it  is  disregarded  by  the  States,  there  is  no  way,  when 
the  votes  are  counted  in  the  presence  of  the  two  Houses  or  by 
this  commission,  to  try  and  settle  such  questions.  .  . 
There  are  few  provisions  of  the  Constitution  that  are  self-exe- 
cuting and  clearly  this  is  not  one.  .  .  .  The  very  highest 
interests  of  society  require  that  the  validity  of  official  acts  shall 
not  be  disturbed  because  of  the  ineligibility  of  the  persons 
performing  them  to  hold  office.  And  the  reasons  for  this 
doctrine  apply  as  strongly  in  this  case  as  in  any  other.  If  the 
vote  of  an  elector  can  be  stricken  out  by  a  subsequent  decision 
that  he  was  ineligible,  the  evil  is  without  remedy;  the  State 
has  lost  the  vote  and  the  spirit  of  the  Constitution  has  been 
violated." 

There  is,  I  think,  no  such  war  between  the  spirit  and  the 
letter  of  the  Constitution,  and  the  express  provision  is 
that  no  State  shall  appoint,  etc.  If  a  State,  in  defiance 
of  the  supreme  law  of  the  land,  elect  a  man  to  an  office 
which  the  Constitution  of  the  United  States  explicitly 
declares  he  shall  not  fill,  the  fault  is  her  own  and  the 
punishment  of  the  loss  of  the  electoral  vote  should  follow. 
Frelinghuysen  put  his  decision  on  the  ground  that  the 


The  Oregon  Case  195 

canvass  of  the  Secretary  of  State  was  the  final  determina- 
tion and  that  Watts'  resignation  caused  a  vacancy  which 
was  properly  filled.  Neither  Hoar  nor  Garfield  nor  Payne 
nor  Edmunds  filed  opinions. 

Justice  Strong's  views  were  ably  expressed. 

"I  still  think,  as  I  thought  when  we  had  the  Florida  and 
Louisiana  cases  under  consideration,  that  when  the  laws  of  a 
State  have  appointed  a  tribunal,  either  a  board,  a  council,  an 
officer,  or  any  authority  to  ascertain,  decide,  or  determine 
what  have  been  the  results  of  an  election  for  presidential 
electors,  the  decision  of  that  board,  officer,  or  authority  is 
conclusive,  so  long  as  it  remains  unreversed  by  a  judicial 
tribunal  empowered  by  State  law  to  reverse  it." 

The  right  of  a  person  claiming  to  be  elected  is  to  be 
tested,  he  declared,  by  the  results  of  the  State  canvass, 
not  by  what  either  preceded  or  followed  that  canvass. 
The  law  of  Oregon,  said  the  justice,  makes  the  Secretary 
of  State  the  sole  canvassing  officer,  and  the  governor  of 
Oregon  has  no  authority  to  canvass  the  returns  of  votes 
for  presidential  electors.  His  unauthorized  certificate 
was  the  sole  foundation  for  the  claim  made  by  the  Tilden 
electors.  "I  said  distinctly  more  than  once,  when  re- 
marking upon  the  Florida  case,  the  governor's  certificate 
is  not  unimpeachable."  But  to  say  that  the  certificate 
may  not  be  unimpeachable  does  not  meet  Merrick's  point 
that  there  existed  no  tribunal  to  test  its  validity.  To 
paraphrase  Morton  in  order  to  put  his  assertion  interroga- 
tively: When  the  votes  are  counted  in  the  presence  of 
the  two  Houses  is  there  any  way  to  try  and  settle  the 
question  whether  an  executive  certificate  is  true  or  false? 
The  learned  justice's  reasoning  upon  the  subject  of 
Watts'  ineligibility  is  not  convincing:  "I  believe  that 
neither  this  commission  nor  Congress  has  any  power 
under  the  Constitution  to  judge  of  the  qualifications 
of  a  State  elector,  no  more  than  we  have  to  judge  of 


19^  The  Electoral  System 

State  elections  and  returns."  The  fallacy  of  this  argu- 
ment is  that  the  State  upon  which  a  prohibition  is  laid 
becomes  the  judge  of  its  own  obedience.  But  whatever 
the  doubtful  powers  of  the  commission  or  Congress, 
surely  within  the  Federal  Government  there  must  reside 
authority  to  annul  a  vote  by  an  ineligible  elector.  Judge 
Strong  also  argued  that  if  Watts  was  ineligible  on  the 
day  of  his  election,  his  disqualification  for  appointment 
ceased  on  the  14th  of  November. 

**  Concede,  for  the  sake  of  argument,  he  was  ineligible  on 
the  7th  of  November,  and,  therefore,  was  not  elected,  though 
he  received  a  higher  number  of  votes  than  any  competitor, 
then  there  were  two  chosen  and  the  college,  consisting  of  three, 
was  not  full.  One  elector  was  wanting.  There  was  a  vacancy, 
and  that  vacancy  was  filled  on  December  6th,  by  the  action  of 
the  two  electors  who  were  chosen,  who  then  appointed  Watts 
to  fill  it." 

The  notion  that  a  vacancy  can  exist  only  when  an  office 
has  had  an  incumbent,  he  characterized  as  technical! 
The  language  of  the  Oregon  statute  was  very  compre- 
hensive; it  covered  vacancies  occasioned  in  specified 
ways  and  "otherwise." 

Mr.  Justice  Miller  adhered  to  the  view  he  expressed  in 
the  Florida  case,  that  the  fact  that  an  elector  held  an 
office  of  trust  or  profit  under  the  United  States  at  the 
date  of  his  election  did  not  render  that  election  void. 
'*I  concede,  as  I  did  then,  that  his  title  to  the  office  could 
have  been  avoided  if  there  had  been  any  tribunal  com- 
petent to  try  the  question  of  his  ineligibility,  and  it  had 
been  so  tried  and  found  before  he  gave  his  vote  for  Presi- 
dent and  Vice-President."  The  governor  of  the  State 
was  not  such  a  tribunal,  and  had  no  authority  to  pass 
upon  the  case. 

"  If  [continued   Justice    Miller]  Watts'    election  was    not 


The  Oregon  Case  197 

void,  his  subsequent  resignation  and  failure  to  attend  made  a 
vacancy  in  the  electoral  college,  which  the  other  members 
were  by  statute  authorized  to  fill,  and  his  appointment  by 
them  to  fill  that  vacancy  was  valid,  because  he  had  then 
ceased  to  hold  the  office  of  postmaster." 

The  wilful  refusal  of  the  governor  to  sign  a  certificate 
"is  not  sufficient  to  nullify  everything  else  that  was  done, 
and  make  it  of  no  effect.  No  such  force  has  been  attrib- 
uted to  it  in  the  other  cases,  and  I  do  not  see  how  it 
can  be  so  here." 

Mr.  Justice  Bradley  was  of  the  view  that  the  Secretary  of 
State  was  the  highest  canvassing  authority  in  the  State, 
and  that  his  certificate  was  equivalent  to  the  return  of  the 
State  canvassing  board  in  Florida  or  Louisiana.  The 
governor's  action  in  attempting  to  disregard  the  canvass 
and  to  reject  an  elector  whom  he  believed  ineligible  was 
a  clear  act  of  usurpation.  The  certificate  given  by  the 
governor  to  Cronin  v^diS  prhna  facie  evidence, 

"  but  no  person  has  contended  that  it  cannot  be  contradicted 
and  shown  to  be  untrue,  especially  by  evidence  of  equal 
dignity.  We  did  not  so  decide  in  the  other  cases.  We  held 
that  the  final  decision  of  the  canvass  by  the  tribunal  or  au- 
thority constituted  for  that  purpose  could  not  be  revoked  by 
the  two  Houses  of  Congress,  by  going  into  evidence  behind 
their  action  and  return." 

Upon  the  subject  of  Watts'  ineligibility,  Bradley  said : 
"It  is  agreed  by  a  large  majority  of  the  commission  that 
Cronin  was  not  elected.  Some  of  this  majority  take  the 
ground  that  Watts  was  duly  elected,  whatever  effect  his 
ineligibility,  had  it  continued,  might  have  had  on  his 
vote.  Others  take  the  ground  that  there  was  no  election 
of  a  third  elector."  In  either  case,  said  Bradley,  there 
was  a  vacancy.  The  broad  language  of  the  Oregon 
statute  provided  for  every  supposable  case  of  a  vacancy 
in  the  office  of  elector. 


igS  The  Electoral  System 

The  Democratic  members  of  the  commission  did  not 
agree  with  Mr.  Tilden's  counsel  that  a  minority  candi- 
date was  elected  when  his  opponent  was  ineligible.  In 
their  judgment  the  board  consisted  of  both  the  secretary 
and  the  governor  and  both  had  certified  to  the  election 
of  Cronin,  Miller,  and  Parker.  But  it  was  of  much  less 
moment  to  determine  where  the  Oregon  statute  had 
placed  the  power — although  that  was  important — than  to 
determine  whether  an  elector  ineligible  under  the  Con- 
stitution could  nevertheless  vote.  The  opinions  of  the 
Democratic  commissioners  in  regard  to  the  effect  of  the 
choice  of  an  ineligible  elector  are  clear,  able,  consistent, 
eloquent. 

Said  Bayard: 

*'  I  have  not  yet  been  able  to  comprehend  the  force  of  the 
argument  that  the  provisions  of  the  Constitution  prohibiting 
the  appointment  as  electors  of  certain  official  classes  can  be 
held  self-executing  on  the  6th  of  December,  but  not  self-exe- 
cuting on  the  7th  of  November;  and  this  in  the  teeth  of  the 
plain  words  affixing  the  disqualification  upbn  the  person  and 
the  limitation  upon  the  power  of  the  State." 

The  failure  of  the  people  of  Oregon  to  elect  an  eligible 
elector  did  not  create  a  vacancy.  Watts'  resignation 
was  in  opposition  to  the  plain  mandate  of  the  Constitu- 
tion that  ke  should  not  be  appointed ;  consequently  he 
could  not  resign  an  office  he  never  held,  nor  by  any  act 
of  his  could  he  create  a  vacancy  in  such  office.  Senator 
Bayard  also  paid  this  tribute  to  Governor  Grover,  whom 
Merrick  styled  "the  much-abused  executive,"  whose 
motives  in  issuing  the  certificate  to  Cronin  had  been 
assailed : 

**  The  very  able  arguments  which  we  have  heard  upon  this 
subject,  and  the  elaborate  briefs  submitted  for  our  instruction, 
if  they  are  not  adequate  to  control  us  in  the  adoption  of  the 


The  Oregon  Case  199 

view  taken  by  Governor  Grover  in  this  case,  are  more  than 
sufficient  to  place  his  action  upon  a  high  plane  of  conscientious 
discretion,  which  lifts  him  to  a  level  with  as  sound  and  repu- 
table jurists  as  have  adorned  the  bench  of  England  or  of  the 
United  States." 

It  was  the  decision  of  Bayard,  as  of  his  Democratic  asso- 
ciates on  the  commission,  that  but  two  votes  of  the 
State  of  Oregon  should  be  counted, — the  votes  of  Odell 
and  Cartwright,  Hayes  electors. 

Hunton  also  took  the  stand  that  the  vote  cast  by  the 
Cronin  college  was  not  the  constitutional  vote  of  Oregon  ; 
that  Watts  was  ineligible  and  his  resignation  did  not 
create  a  vacancy.  Abbott,  who  coincided  in  these  views, 
put  the  prohibition  of  the  Federal  Constitution  in  a  strong 
light  when  he  said : 

**  The  Constitution  must  be  construed  as  saying  in  terms  to 
the  people  of  Oregon,  *  You  shall  not  vote  for  J.  W.  Watts.* 
It,  in  effect,  so  says  to  the  people  of  any  State  in  reference  to 
any  candidate  who  holds  an  office  of  trust  or  profit  under  the 
United  States.  To  claim  that  this  prohibition  upon  the  States 
is  left  to  them,  .  .  .  and  to  them  only,  to  enforce,  is 
against  all  logic  and  reason. ' ' 

Equally  forcible  was  Abbott's  analysis  of  the  Oregon  law 
providing  for  the  filling  of  vacancies  in  the  electoral  col- 
lege. A  vacancy  could  happen  only  when  the  office  had 
once  been  occupied.  The  phraseology  shows  this  clearly, 
and  the  words  "or  otherwise,"  applying  the  accepted 
canon  of  construction  embodied  in  the  Latin  maxim 
''noscitur  a  sociis,''  import  a  vacancy  for  analogous 
causes.  Mr.  Justice  Field  urged  the  point  with  impres- 
siveness  and  eloquence.  "The  prohibition"  [of  the 
Constitution] 

**  is  unqualified  and  absolute.  All  the  power  of  appointment 
possessed  by  the   State  comes  from  the  Constitution.     The 


200  The  Electoral  System 

office  of  elector  is  created  by  that  instrument.  Her  power  of 
selection  is,  therefore,  necessarily  limited  by  its  terms;  and 
from  her  choice  the  class  designated  is  excluded.  The  object 
of  the  exclusion  was  to  prevent  the  use  of  the  patronage  of  the 
Government  to  prolong  the  official  life  of  those  in  power." 

The  clause,  he  argued,  operated  by  its  own  force.  Like 
the  prohibition  against  passing  an  ex  post  facto  law  or  a 
bill  of  attainder,  or  a  law  impairing  the  obligation  of 
contracts,  it  executes  itself;  it  requires  no  legislation  to 
carry  it  into  effect.  He  distinguished  the  case  of  an 
elector  from  that  of  a  Representative  or  Senator.  The 
clause  of  the  Constitution  declaring  that  "no  person  j//<3:// 
be  a  Representative  who  shall  not  have  attained  to  the 
age  of  twenty-five  years,"  and  the  clause  that  "no  person 
shall  be  a  Senator  who  shall  not  have  attained  to  the  age 
of  thirty  years,"  do  not  forbid  an  election  of  persons  thus 
disqualified;  they  only  prohibit  them  from  holding  the 
office  so  long  as  the  disqualification  exists. 

*'  They  can  take  the  office  whenever  that  ceases.  But  with 
respect  to  electors  the  case  is  different;  there  is  an  incapacity 
on  the  part  of  the  State  to  appoint  as  electors  certain  classes 
of  officers.  This  distinction  between  ineligibility  to  an  office 
and  disquahfication  to  hold  the  office  is  well  marked.  The 
one  has  reference  to  the  time  of  election  or  appointment;  the 
other  to  the  time  of  taking  possession  of  the  office.  .  .  . 
If,  therefore,  at  the  time  of  the  election,  persons  are  within 
the  classes  designated,  their  appointment  is  impossible.  .  .  . 
One  clause  of  the  same  section  cannot  be  disregarded  any 
more  than  the  other,  and  surely  the  appointment  of  a  greater 
number  of  electors  than  the  State  was  entitled  to  have  would 
be  a  vain  proceeding." 

Replying  to  those  who  argued  that  the  governor's  re- 
fusal of  a  certificate  to  Watts  was  an  act  of  usurpation, 
an  assumption  of  judicial  functions,  Justice  Field  declared 
that  the  governor  was  bound  by  the  Constitution  and  his 


I 


The  Oregon  Case  201 

oath  of  office  to  decline  the  certificate,  and  he  ridiculed 
the  opposing  contention  that  it  was  that  official's  duty 
to  issue  his  certificate  of  election  to  any  one  who  might 
obtain,  according  to  the  determination  of  the  canvassers, 
the  highest  number  of  votes,  however  ineligible  the  per- 
son and  however  imperative  the  prohibition  against  his 
taking  the  office. 

"  To  test  this  doctrine,  I  put  this  question  to  these  gentle- 
men: Supposing  the  law  declared  that  only  white  persons 
should  be  eligible  to  an  office,  and  the  highest  number  of 
votes,  according  to  the  canvassers,  should  be  cast  for  a  colored 
man,  would  the  governor  be  bound  to  issue  a  commission  to 
him?  The  gentlemen  answered  that  he  would  be  thus  bound; 
that  the  governor  could  not  in  such  case  decide  the  question 
of  the  colored  man's  ineligibility.  Mr.  Senator  Thurraan  put 
this  further  question:  Supposing  the  law  of  the  State  declared 
that  only  males  should  be  elected  to  an  office,  and  the  highest 
number  of  votes  were  cast,  according  to  the  report  of  the  can- 
vassers, for  a  female,  would  the  governor  be  bound  to  issue  a 
commission  to  her?  The  gentlemen  replied  as  before,  that  he 
would  be  thus  bound;  that  the  governor  could  not  determine 
the  ineligibility  of  the  party  on  the  ground  of  her  sex.  There 
is  something  refreshing  in  these  days  of  sham  and  pretence  to 
find  men  who  will  thus  accept  the  logic  of  their  principles  to 
whatever  result  they  may  lead." 

Mr.  Justice  Field  would  not  vote  that  Cronin,  the  candi- 
date having  the  next  highest  number  of  votes  to  Watts, 
"was  duly  appointed,"  for  he  was  a  minority  candidate. 
The  commission,  by  a  unanimous  vote,  decided  that 
the  certificate  signed  by  Cronin,  Miller,  and  Parker,  pur- 
porting to  cast  the  electoral  vote  of  the  State  of  Oregon, 
did  not  contain  or  certify  the  constitutional  vote  to 
which  said  State  was  entitled;  but,  by  a  vote  of  eight  to 
seven,  decided  that  Odell,  Cartwright,  and  Watts,  the 
persons  named  as  electors  in  certificate  No.  i,  were  the 


202  The  Electoral  System 

lawful  electors  of  the  State  of  Oregon,  and  that  their 
votes  were  the  votes  provided  for  by  the  Constitution  of 
the  United  States,  and  should  be  counted  for  President 
and  Vice-President  of  the  United  States.  This  decision 
was  communicated  to  the  two  Houses  on  February  23, 
1877;  objection  was  made  to  it,  the  Houses  again  went 
through  the  formality  of  separating  to  consider  the  de- 
cision, and  the  Senate  voted  for  its  acceptance,  the  House 
for  its  rejection.  The  Senate  vote  was  41  yeas  to  24 
nays;  the  House  vote,  which  was  upon  the  resolution 
that  the  vote  given  by  Watts  should  not  be  counted,  was 
151  yeas  to  106  nays. 

SOUTH   CAROLINA 

Two  certificates  had  been  transmitted  from  South 
Carolina  to  the  president  of  the  Senate ;  one,  signed  by 
Governor  Chamberlain  under  the  seal  of  the  State,  with 
the  return  of  the  seven  Hayes  electors  attached;  the 
other,  signed  by  the  seven  Tilden  electors,  setting  forth 
their  claim  that  they  had  been  duly  appointed  electors  of 
the  State  of  South  Carolina,  elected  by  general  ticket, 
and  had  received  the  highest  number  of  votes  at  the 
popular  election  of  1876.  The  certificate  further  stated 
that  the  State  board  of  canvassers,  after  a  pretended 
canvass  of  the  returns,  had  illegally  declared  the  Hayes 
electors  elected ;  that  the  Tilden  electors  had  instituted 
quo  warranto  proceedings  in  the  Supreme  Court  of  the 
State  to  try  their  title  to  the  electoral  office;  that  the 
proceeding  was  still  pending  undetermined ;  that  they  had 
made  demand  upon  the  Secretary  of  State  of  South  Caro- 
lina for  the  lists  required  by  law  and  that  their  demand 
had  been  refused. 

Objections  were  made  in  the  joint  session  of  the  two 
Houses  to  each  certificate.  The  Democratic  objections 
to  the  certificate  attesting  the  election  of  the  Hayes  elec- 
tors were,  first,  that  no  legal  election  was  held  in  the 


The  South  Carolina  Case  203 

State  for  presidential  electors,  inasmuch  as  the  General 
Assembly  of  the  State  had  not  provided,  as  required  by 
statute,  for  the  registration  of  persons  entitled  to  vote; 
secondly,  that  there  was  no  republican  form  of  govern- 
ment, such  as  is  guaranteed  by  the  Constitution  to  every 
State  in  the  Union,  in  existence  in  South  Carolina  at  the 
time  of  the  election ;  thirdly,  that  the  Federal  army  was 
used  to  prevent,  and  that  it  actually  did  prevent,  a  legal 
or  free  election ;  fourthly,  that  deputy  marshals  of  the 
United  States,  over  one  thousand  in  number,  so  inter- 
fered with  the  election  that  a  full  and  free  exercise  of  the 
right  of  suffrage  was  impossible;  and,  lastly,  that  there 
was  not,  at  the  time,  any  State  government  in  the  State. 
Objections  were  filed  by  Republican  Senators  and  Repre- 
sentatives to  the  Tilden  lists  as  lacking  the  governor's 
certificate,  and  on  the  ground  that  the  Hayes  electors 
were  the  actual  electors  entitled  to  cast  the  vote  of  the 
State.  Under  the  Electoral  Commission  law  the  cer- 
tificates and  objections  were  referred  to  the  commission, 
which  met  for  their  consideration  on  February  23,  1877, 
and  reported  its  decision  to  the  two  Houses  on  the  even- 
ing of  the  same  day.  It  was  not  urged  before  the  com- 
mission that  the  votes  of  the  Tilden  electors  should  be 
counted,  for  the  Hayes  electors  had  undoubtedly  received 
a  majority  of  the  votes  cast.  The  effort  of  Representa- 
tives Hurd  and  Hurlbut,  who  appeared  for  the  objectors 
to  certificate  No.  i,  was  to  establish  that  South  Carolina 
had  not  a  republican  form  of  government  and  that  the 
violation  by  the  Legislature  of  the  provision  of  the  State 
constitution  requiring  the  passage  of  a  State  registration 
law  nullified  the  entire  vote  of  the  State,  while  the  pres- 
ence of  Federal  soldiers  prevented  a  fair  suffrage.  The 
commission,  by  a  vote  of  eight  to  seven,  declined  to  re- 
ceive the  evidence  proffered  in  support  of  these  objec- 
tions. The  objection  that  the  government  of  the  State 
was  not  republican  in  form,  inasmuch  as  the  State  was 


204  The  Electoral  System 

recognized  as  a  member  of  the  Union  by  the  executive 
department  of  the  Government  and  by  the  national 
legislature  through  the  presence  of  its  Senators  and  Re- 
presentatives in  the  national  Congress,  could  hardly  have 
been  urged  with  confidence  that  it  would  appeal  to  a 
tribunal  that  had  in  all  its  previous  decisions  divided 
along  political  lines.  The  one  question  of  abiding  in- 
terest raised  in  the  South  Carolina  case,  was  whether,  on 
all  matters  relating  to  the  appointment  of  electors,  the 
Legislature  of  a  State,  deriving  its  authority  from  the 
Constitution  of  the  United  States,  is  beyond  and  above 
the  constitution  of  the  State.  .The  objectors  argued  that 
the  South  Carolina  constitution  made  a  registration  law 
an  essential  prerequisite  to  a  valid  election,  but  it  was 
answered  by  Representative  Lawrence,  on  behalf  of 
the  Hayes  electors,  that  a  failure  by  the  Legislature  of 
the  State  to  comply  with  the  provisions  of  the  State  con- 
stitution could  not  defeat  the  duty  imposed  on  the  State 
by  the  "higher  law"  of  the  supreme  national  Constitu- 
tion, or  disfranchise  a  State  in  the  election  of  a  President. 
There  is  nothing  new,  said  Lawrence,  in  the  suggestion 
that  a  State  constitution  may,  in  some  of  its  provisions, 
be  unconstitutional  and  void  because  in  conflict  with  the 
Constitution  of  the  United  States.  Mr.  Justice  Story, 
in  the  Massachusetts  Constitutional  Convention  of  1820, 
denied  the  right  of  any  State  to  insert  in  its  constitution 
"a  provision  which  controls  or  destroys  a  discretion 
which  may  be,  nay,  must  be,  exercised  by  the  Legislature, 
in  virtue  of  powers  confided  to  it  by  the  Co?istitution  of  the 
United  States.'' 

Morton,  Frelinghuysen,  and  Bradley  were  the  only 
Republican  commissioners  who  delivered  opinions  in  the 
South  Carolina  case.  Morton  said  that,  whatever  might 
be  the  legal  effect  of  the  absence  of  a  registry  law  upon 
the  election  of  State  officers,  it  would  be  absurd  to  pre- 
tend that   it  could  have  any  upon  the  appointment  of 


The  South  Carolina  Case  205 

electors.     His  utterances  are  so  important  that  I  quote 
them  in  full: 

"The  manner  of  the  appointment  of  electors  has  been 
placed  by  the  Constitution  of  the  United  States  in  the  Legis- 
lature of  each  State  and  cannot  be  taken  from  that  body  by 
the  provisions  of  a  State  constitution.  If  the  constitution  of 
a  State  should  provide  that  electors  should  be  appointed  by 
the  Supreme  Court  of  the  State,  that  could  not  prevent  the 
Legislature  from  providing  that  electors  might  be  appointed 
by  the  vote  of  the  people.  The  Constitution  of  the  United 
States  provides  that  Senators  shall  be  chosen  by  the  Legis- 
lature of  each  State,  and  it  is  not  competent  in  the  constitu- 
tion of  a  State  to  require  that  Senators  shall  be  elected  by  the 
people  at  a  general  election  and  thus  take  from  the  Legislature 
the  right  to  elect.  The  power  to  appoint  electors  by  a  State 
is  conferred  by  the  Constitution  of  the  United  States,  and 
does  not  spring  from  a  State  constitution,  and  cannot  be  im- 
paired or  controlled  in  any  respect  by  a  State  constitution.  It 
is  competent  for  the  constitution  of  the  State  to  provide  that 
State  officers  shall  be  chosen  at  an  election  where  the  voters 
have  been  registered,  but  it  is  not  competent  to  make  any  such 
requisition  as  to  the  appointment  of  electors.  If  the  Legis- 
lature provides  that  electors  may  be  appointed  by  the  people 
at  the  polls  without  having  been  previously  registered  it  has  a 
clear  right  to  do  so." 

Frelinghuysen  declared  it  a  sufficient  answer  to  the 
objection  that  the  failure  to  enact  a  registration  law  ren- 
dered the  election  void,  that  the  Legislature,  in  the  ap- 
pointment of  electors,  "acts  under  the  authority  of 
the  Constitution  of  the  United  States  and  is  entirely 
untrammelled  by  the  State  constitution."  Justice 
Bradley's  opinion  omits  all  notice  of  the  point,  but  is 
chiefly  devoted  to  overthrowing  the  contention  that  the 
two  Houses,  in  their  capacity  of  a  joint  convention  to 
count  the  electoral  vote,  have  the  same  extensive  power 
of  inquisition  that  belongs  to  them  as  legislative  bodies. 


2o6  The  Electoral  System 

Hence,  while  the  commission  declined  to  receive  evidence 
to  impeach  the  title  of  the  Hayes  electors,  only  two  com- 
missioners. Senator  Morton  and  Senator  Frelinghuysen, 
denied  the  right  of  a  State  through  its  constitution  to 
control  the  State  Legislature  in  the  appointment  of 
electors. 

The  Democratic  commissioners  who  wrote  opinions  in 
the  3outh  Carolina  case  were  Bayard,  Hunton,  and  Ab- 
bott. Thurman  resigned  from  the  commission,  because 
of  indisposition,  at  the  close  of  the  Oregon  hearing,  and 
Senator  Kernan,  of  New  York,  was  elected  by  the  Sen- 
ate as  his  substitute,  but  Kernan  delivered  no  opinion  in 
the  case.  Bayard  held  the  objection  to  registration  not 
well  taken,  because  another  section  of  the  State  constitu- 
tion controlled.  But  in  the  Louisiana  case  he  had  de- 
clared that  the  State  Legislature  was  not  paramount  to 
the  State  constitution  in  the  appointment  of  electors 
so  long  as  its  regulations  were  not  in  conflict  with  the 
nation's  organic  law.  Neither  Hunton  nor  Abbott 
discussed  the  subject.  Upon  one  proposition  the  com- 
mission were  unanimous,  that  the  Tilden  electors  were 
not  the  lawful  electors,  and  that  their  votes  should  not 
be  counted.  The  majority  of  the  commission,  in  report- 
ing to  the  two  Houses  that  the  Hayes  electors  were  the 
duly  elected  electors  of  the  State,  declared  that  the 
commission 

"  must  take  notice  that  there  is  a  government  in  South  Caro- 
lina, republican  in  form,  since  its  constitution  provides  for 
such  a  government,  and  it  is,  and  was  on  the  day  of  appoint- 
ing electors,  so  recognized  by  the  executive  and  by  both 
branches  of  the  legislative  departments  of  the  Government 
of  the  United  States." 

The  troops,  it  held,  were  placed  within  the  State  by  the 
President  of  the  United  States,  to  suppress  insurrection, 
at  the  request  of  the  State  authorities. 


The  South  CaroHna  Case  207 

The  two  Houses,  upon  receiving  the  commission's 
report  upon  the  South  Carolina  returns,  separated.  The 
Senate  voted  that  the  certificate  showing  the  appoint- 
ment of  the  Hayes  electors  should  be  received,  the  vote 
being  39  to  22,  while  the  House  voted  against  acceptance 
by  190  to  72.  Thus,  in  every  case  referred  to  the  com- 
mission, the  two  Houses  were  diametrically  opposed  in 
their  views,  the  Senate  always  sustaining  the  majority  of 
the  commission,  the  House  always  sustaining  the  minor- 
ity, and  the  vote  in  each  instance  in  the  Senate  and  the 
House  being  on  strict  party  lines.  Under  the  terms  of 
the  law  creating  the  commission,  the  failure  of  the  two 
Houses  to  agree  resulted  in  the  acceptance  of  the  com- 
mission's report  and  the  counting  of  the  vote  for  the 
Republicans  in  every  instance. 

It  would  be  digressing  from  our  prescribed  course 
to  criticise  the  judgments  of  the  Electoral  Commission. 
Partisans  pro  and  contra  were  heard  in  the  press  of  the 
time ;  and  probably,  as  opinions  have  long  differed  upon 
many  of  the  debatable  points  of  history, — whether,  for 
example,  the  resistance  of  the  people  to  Charles  I,  of 
England  was  justifiable  or  criminal,  whether  the  conven- 
tion of  1792  rightly  condemned  Louis  XVI.,  or  the  mas- 
sacre of  the  Albanian  prisoners  at  Jaffa  by  Napoleon  was 
defensible  under  the  laws  of  war, — so  they  will  long  be  in 
antagonism  regarding  the  decisions  of  the  electoral  tribu- 
nal. The  majority  of  the  commission  announced  a  doc- 
trine in  conformity  with  the  Constitution  when  they 
declared  the  Federal  authority  powerless  to  question  the 
determination  of  a  State  canvassing  board  upon  the  num- 
ber of  votes  cast  at  an  election  of  presidential  electors. 
The  reconstruction  theory  of  a  returning  board  with 
judicial  functions  is  not  likely  to  be  revived;  it  is  un- 
American.  One  proposition  subtly  urged  upon  the  com- 
mission was  that  a  statute  creating  a  board  with  judicial 
powers   to    reject    votes    for    presidential    electors   was 


268  The  Electoral  System 

authorized  under  the  Federal  Constitution,  and  that  the 
right  of  the  Legislature  of  a  State  to  enact  such  a  law- 
could  not  be  limited  by  the  constitution  of  the  State. 
Most  of  the  commissioners  failed  to  discuss  the  question. 
Garfield,  in  his  opinion  in  the  Louisiana  case,  declared 
that  the  national  Constitution  had  conferred  upon  the 
State  Legislature  the  sole  and  exclusive  authority  to 
prescribe  the  mode  of  appointment,  and  consequently  to 
vest  the  returning  board  with  power  to  reject  votes,  but 
he  added:  "If  I  were  framing  a  body  of  laws  for  Ohio, 
I  certainly  should  not  adopt  the  Louisiana  law  as  my 
model." 

Senator  Bayard,  in  his  opinion,  expressed  his  total  dis- 
sent from  the  notion  that  the  Federal  Constitution  gave 
to  the  State  Legislature  a  power  above  and  beyond  the 
reach  of  the  people  of  the  State  through  its  organic  law. 
The  Hon.  Matthew  H.  Carpenter,  in  his  address  in  the 
Louisiana  case,  forcibly  stated  the  same  view  in  this  form  : 

'*  When  the  Constitution  of  the  United  States  says  a  State, 
in  such  manner  as  its  Legislature  shall  prescribe,  shall  appoint 
electors,  it  refers  of  course  to  that  form  of  government  whose 
Legislature  is  restricted  by  its  own  constitution.  It  does  not 
mean  some  Hottentot  community.  It  means  one  of  our  States, 
one  of  the  constitutional  States;  .  .  .  our  Constitution 
should  be  read  just  as  though  the  words  were  that  the  Legis- 
lature shall  prescribe  a  method  in  conformity  with  their  own 
constitution." 

In  the  South  Carolina  case  Morton  and  Frelinghuysen 
expressed  their  unqualified  approval  of  the  doctrine  that 
the  State  Legislature  in  the  appointment  of  electors  was 
subject  only  to  the  fundamental  law  of  the  nation. 
Thus,  at  the  very  threshold  of  the  provisions  of  the  Fed- 
eral Constitution  arises  a  question  of  transcendent  import : 
Is  the  power  which  has  been  directly  granted  by  that 
instrument  to  the  several  State  Legislatures,  in  the  ap- 


The  South  Carolina  Case  209 

pointment  of  electors,  of  such  a  nature  that  it  is  beyond 
the  control  of  the  people  of  the  State,  through  their 
organic  law?  Has  the  Legislature  of  a  State  the  su- 
preme, sovereign  authority  to  deprive  the  citizens  of  the 
State  of  the  selection  of  presidential  electors,  although 
the  State  constitution  may  declare  that  their  election 
shall  be  by  popular  vote?  Under  this  Czar-like  power, 
the  Legislature  might  defiantly  arrogate  to  itself  the  ap- 
pointment of  electors,  or  bestow  it  upon  the  judiciary 
or  upon  any  agent  or  board  or  legislative  committee. 

It  is  a  fruitless  search  through  the  arguments  of  coun- 
sel or  the  opinions  of  the  commission  for  anything  like 
unanimity  of  definition  of  an  elector.  Beyond  repeating 
the  few  phrases  of  the  Constitution,  many  were  reti- 
cent, and  those  who  spoke  uttered  dissonant  theories. 
Evarts  on  several  occasions  used  the  term  "representative 
elector. ' '  He  declared  that  * '  the  elector  was  not  an  officer 
of  the  State ;  that  in  no  very  considerable  sense  could  he 
be  treated  as  an  officer  of  the  United  States ;  that  he  was 
an  elector , having  the  right  under  the  Constitution  of  the 
United  States  to  vote  for  President,  and  that  he  was  a 
representative  elector."  Asked  by  Commissioner  Thur- 
man  whether  the  elector  was  an  officer  at  all,  either  Fed- 
eral or  State,  Evarts  replied:  "I  do  not  think  he  is. 
Certainly  he  is  not  a  State  officer."  Judge  Campbell, 
replying,  twitted  Evarts  with  inability  to  tell  "what  sort 
of  a  creature  an  elector  is.  I  am  not  sure  that  in  his 
conception  he  is  a  human  being;  .  .  .  he  is  not  an 
officer  of  the  United  States;  he  is  not  an  officer  of  the 
State."  So  elusive  is  the  electoral  function  that  per- 
plexity shrouds  its  ephemeral  existence.  If  an  elector 
declared  by  the  Federal  Constitution  to  be  ineligible 
should  be  chosen,  is  his  eligibility  to  be  decided  by  the 
State?  In  other  words,  is  the  alleged  offender  against 
the   nation's    organic    law    to    be    exclusive    judge    or 

judge  at  all?     Justice  Campbell,  under  interpellation  by 
14 


210  The  Electoral  System 

Commissioner  Strong,  insisted  that  Congress  alone  could 
create  a  tribunal  to  inquire  into  the  competency  of  elec- 
tors, because  every  State  in  the  Union  would  be  inter- 
ested in  the  decision.  Justice  Miller,  on  the  other  hand, 
doubted  the  power  of  Congress  to  establish  any  tribunal 
to  pass  upon  the  validity  of  an  elector's  appointment  or 
his  eligibility  to  office.  Justice  Campbell's  contention 
cannot  lightly  be  ignored,  erroneous  as  was  his  claim  that 
the  two  Houses  had  power  to  count  the  popular  vote. 

The  Florida  decision  suggests  interesting  questions. 
Had  the  quo  warranto  proceedings  been  initiated  in 
time  to  enable  the  State  court  of  last  resort  to  pro- 
nounce a  final  decree  before  the  electors  met,  would 
its  adjudication  that  either  the  Hayes  electors  or  the 
Tilden  electors  were  the  lawful  deputies  to  cast  the  bal- 
lots of  the  State  for  President  have  been  accepted  by  the 
defeated  party?  If  such  a  controversy  might  be  imagined 
as  arising  in  the  State  of  New  York  in  a  presidential  elec- 
tion turning  upon  the  vote  of  that  State,  would  both 
parties  acquiesce  in  the  judgment  of  the  State  tribunal? 
Or  assume  that,  after  the  vote  of  the  false  elector  had 
been  cast,  the  State  court  had  in  the  clearest  and  most 
convincing  manner  established  his  failure  of  election, 
would  the  acceptance  of  his  ballot  not  seem  a  species  of 
treason?  Would  the  view  of  a  number  of  the  commis- 
sion's members  prevail,  that,  once  the  office  had  been 
attained  and  the  vote  given,  all  inquiry  should  be  barred, 
and  the  vote  of  the  de  facto y  if  not  also  de  jure,  elector 
accepted  as  beyond  impeachment,  although  fraud  in  the 
election  should  have  been  made  clear  as  day  to  the 
State  authorities?  These  interrogatories  are  put  with 
no  thought  of  criticising  the  judgment  of  a  majority 
of  the  commission.  It  was  probably  sound,  and  was 
certainly  sustained  by  all  arguments  of  convenience. 
The  inquiry  does  not  trench  upon  the  plainly  valid 
and  unanswerable  decision  of  the  commission,  that  the 


The  South  Carolina  Case  211 

determination  of  the  State's  returning  board,  when 
not  overthrown  in  appropriate  legal  proceedings,  is 
binding  upon  the  Federal  counting  power.  But,  as 
was  forcefully  said  by  the  Tilden  counsel,  Florida 
sought,— through  her  Legislature,  through  her  executive, 
through  her  courts, — to  right  what  she  conceived  to  be 
a  monstrous  wrong  done  to  her  people,  in  the  false  per- 
sonation of  her  electoral  voice  by  the  unjust  action  of  the 
State  returning  board;  should  such  misrepresentation 
be  endured  when  the  State  herself,  by  all  her  constitu- 
tional agencies,  declared  the  action  of  the  returning  board 
fraudulent  and  void?  To  assume  to  question  the  validity 
of  the  determination  in  a  direct  attack  upon  it  before  the 
commission  would  be  one  thing;  but  to  bring  to  the 
commission  a  judgment  which,  although /d?^/  haCy  might 
have  been  rendered  by  a  tribunal  of  competent  jurisdic- 
tion, would  be  another  thing.  Edwin  W.  Stoughton,* 
in  his  answer  to  Black,  does  not  meet  this  question.  He 
says: 

"  The  Hayes  electors  cast  and  certified  their  vote  as  duly 
demanded,  and  with  that  ended  all  their  functions.  The  liti- 
gation proceeded,  and,  true  to  the  work  expected  of  him(?), 
the  judge,  a  few  days  before  the  vote  of  Florida  was  counted, 
decided  that  the  Hayes  electors  were  not  duly  appointed. 
Let  us  suppose  the  same  decision  made — as  it  might  have  been 
— after  his  inauguration  as  President.  What  effect  would 
Judge  Black,  to  be  consistent  with  himself,  give  in  such  case 
to  the  decision  of  the  Florida  judge?  The  President  should, 
upon  his  theory,  descend  from  his  great  office  and  give  place 
to  Mr.  Tilden,  should  he  not?  And  then,  supposing  this  to 
be  done,  let  us  imagine  the  decision  reversed  at  the  end  of  a 
year  by  the  Appellate  Court  of  Florida,  what  then  should  be 
done  with  Mr.  Tilden?  Should  he,  too,  in  imitation  of  his 
predecessor,  depart  in  peace,  that  the  latter  might  also  enjoy 

'  "The  Electoral  Conspiracy  Bubble  Exploded,"  125  N.  A.  R.,  193,  213, 
214. 


212  The  Electoral  System 

the  fruits  of  Florida  justice?  This  game  of  shuttle-cock  would 
not  quite  suit  the  majesty  of  the  great  office  in  question,  nor 
the  temper  of  the  American  people.     .     .     ." 

To  say  that  the  case  is  the  same  as  though  a  decision 
were  announced  after  Hayes'  inauguration  implies  a  mis- 
conception that  is  fundamental.  The  Constitution  pro- 
vides no  machinery  for  the  deposition  of  a  President 
seated  in  the  office  without  election  to  it.  When  the 
votes  shall  have  been  counted  and  the  result  declared  by 
the  president  in  the  joint  meeting  of  the  two  Houses  as 
provided  in  the  Constitution,  the  case  is  closed,  the  title 
has  been  conferred.  But  during  the  counting  process, 
error  is  rectifiable ;  and  while  the  majority  of  the  commis- 
sion was  probably  right  in  rejecting  the  quo  warranto 
proceedings  in  Florida,  and  the  legislative  declaration, 
itself  a  solemn  nullity,  that  the  acts  of  the  returning 
board  were  invalid  and  that  the  Tilden  electors  had  been 
chosen  or  appointed,  doubt  is  still  permissible  whether 
the  decree  of  a  State  court  of  competent  jurisdiction, 
affirmed  on  appeal  or  acquiesced  in  without  appeal,  sup- 
posing it  were  not  made  until  after  the  electors  had  met 
and  voted,  could  constitutionally  be  denied  all  recogni- 
tion, if  presented  to  the  counting  authority  before  the 
count  was  complete  or  the  result  declared.  But  if  this 
doubt  be  not  well  founded ;  if,  for  the  peace  and  security 
of  government,  the  vote  of  the  electors  must  be  accepted 
as  valid  de  facto, ^  the  possibility  that  a  great  wrong  should 

1  "  Mr.  Justice  Strong  frankly  admitted  in  a  letter  addressed  to  Hon. 
George  W.  Jones,  of  Tennessee,  bearing  date  February  26,  1877,  that  he 
feared  a  great  wrong  had  been  done  in  the  Louisiana  case.  Mr.  Justice 
Bradley  said  that  he  had  serious  doubts  in  the  Florida  case,  and  that  he  had 
written  and  rewritten  several  different  opinions." — "The  Electoral  Com- 
mission of  1877,"  38  Am.  Law  Rev.,  174,  by  Hon.  John  Goode,  who  was  a 
member  of  the  House  of  Representatives  in  1877,  and  favored  the  Elec- 
toral Commission  law. 

In  an  article  on  "Presidential  Inability,"  Governor  Butler,  in  calling 
attention  to  the  danger  of  political  bias  in  the  consideration  of  political 


The  South  Carolina  Case  213 

be  done  to  a  State  and  to  the  nation,  through  the  ap- 
plication of  a  technical  rule,  is  sufficient  reason  for  the 
abolition  of  a  system  well  calculated  to  engender  discord 
and  strife,  and  to  effect  subversion  of  the  popular  will. 

questions,  by  any  tribunal,  said:  "A  most  striking  example  of  this  ten- 
dency t>f  the  judicial  mind  was  seen  in  the  decision  of  the  judges  who  com- 
posed a  part  of  the  Electoral  Commission  in  1876.  Without  impugning  the 
motives  or  judicial  fairness  of  any  one,  still  the  striking  fact  remains  that 
every  great  question  of  constitutional  law  involved  in  that  controversy  was 
decided  precisely  according  to  the  political  relations  of  the  several  judges. 
If  the  majority  were  right,  it  was  because  they  were  Republicans.  If  the 
minority  were  wrong,  it  was  because  they  were  Democrats.  If  either  were 
right,  it  was  because  they  were  politicians." — 133  N.  A.  R.,  433. 


CHAPTER   IX 

THE  ACT   OF   FEBRUARY   3,    1 88/ 

THE  Electoral  Commission  law  was  special  legisla- 
tion. It  was  passed  to  meet  the  crisis  that  con- 
fronted the  people  of  the  United  States  in  the  presidential 
election  of  1876,  Congress  never  having  enacted  a  general 
law  applicable  to  the  subject,  although  frequently  urged 
to  do  so.  The  act,  as  has  been  seen,  did  not  attempt  to 
determine  where  the  Federal  Constitution  had  reposed 
the  power  to  count  the  electoral  vote;  it  contented  itself 
with  conferring  upon  the  commission  the  powers,  if  any, 
that  both  Houses  of  Congress  possessed  where  there  were 
two  or  more  returns.  The  result  was  that  the  discussion, 
which  had  continued  for  generations  in  Congress,  as  to 
the  proper  repository  of  the  counting  power,  was  renewed 
before  the  commission.  Nor  did  the  commission  attempt 
to  settle  that  question.  The  crisis  arose  and  passed 
without  any  legislation  prescribing  in  what  authority  the 
counting  power  was  actually  vested,  or  fixing  the  boun- 
daries of  that  power.  The  commission  reached  a  nega- 
tive decision  in  the  Louisiana  and  the  South  Carolina 
case,  as  to  the  power  of  Congress  in  the  counting  of  the 
electoral  vote,  when  it  held  that,  whatever  might  be  the 
authority  with  which  the  two  Houses  in  joint  session 
were  clothed,  they  had  not  the  same  broad  power  of  in- 
quisition which  they  might  constitutionally  exercise  in  a 
case  involving  the  election  of  one  of  their  own  members. 
The   decision   of   the   commission   as   to  the  lack   of 

214 


The  Act  of  February  3,  1 887         2 1 5 

power  of  the  Federal  Government  to  inquire  into  the 
correctness  of  the  electoral  vote  of  a  State,  or,  as  it  is 
popularly  stated,  to  go  behind  the  returns,  has  met  with 
increasing  approval.  The  commissioners  and  the  counsel 
who  predicted  that  time  would  vindicate  the  justice  of 
the  decision  were  correct  in  their  prognostications. 
When  once  the  ultimate  State  authority  charged  with 
the  determination  of  the  results  of  a  canvass  of  a  vote 
for  electors  has  definitely  spoken,  whether  it  be  a  State 
canvassing  board,  as  in  Florida  or  Louisiana,  or  a  State 
canvassing  officer,  as  in  Oregon,  its  utterances  must  pass 
unchallenged  by  the  Federal  Government.  The  creden- 
tials of  the  electors,  so  far  as  the  fact  of  their  appoint- 
ment is  concerned,  cannot  constitutionally  be  subjected 
to  further  scrutiny.  Upon  such  perplexing  questions  as 
must  arise  whenever  an  elector  ineligible  under  the  lan- 
guage of  the  Federal  Constitution  is  chosen  by  the  peo- 
ple, the  commission  reached  no  decision  satisfactorily 
applicable  to  future  cases. 

Despite  the  gravity  of  the  situation  in  1877,  Congress 
for  many  years  failed  to  enact  any  remedial  legislation. 
The  Senate  three  times  passed  a  bill  in  substance  like 
the  bill  which  ultimately  became  the  Act  of  February 
3,  1887,  but  the  House  on  each  occasion  withheld  its 
approval. 

Edmunds,  from  a  select  committee  of  the  Senate  in 
1878,  had  reported  a  bill  with  almost  identically  the 
features  of  the  bill  of  1887,  and  it  had  passed  the  Senate. 
Failing  in  the  House,  it  was  reintroduced  in  the  Senate 
by  Hoar  in  1882.  Pugh,  of  Alabama,  speaking  in  regard 
to  it  in  April,  1882,  said:  "No  political  or  governmental 
power  or  duty  has  been  more  fully  or  ably  discussed  in 
both  Houses  of  Congress  than  the  power  and  duty  of 
counting  the  votes  of  the  electors  appointed  by  each 
State  to  choose  a  President  and  Vice-President  of  the 
United  States."     In  arguing  for  the  power  of  the  two 


2i6  The  Electoral  System 

Houses  in  joint  session  to  count,  he  declared  that  only  a 
few — "not  more,  I  am  informed,  than  two  of  this  august 
body" — entertained  the  opinion  that  the  president  of  the 
Senate  possessed  this  power. 

"A  few  believe  that,  as  the  Constitution  is  silent  as  to  where 
the  power  to  count  is  located,  it  is  a  casus  omissus^  and  the 
only  remedy  is  an  amendment  to  the  Constitution;  but  the 
overwhelming  weight  of  argument,  authority,  and  public  opin- 
ion has  located  the  power  and  duty  of  ascertaining  all  of  the 
facts  necessary  to  the  legal  validity  of  the  votes,  and  of  settling 
all  disputes  in  relation  thereto,  and  of  counting  the  legal  votes 
and  declaring  the  final  result  of  each  presidential  election, 
under  rules  of  evidence  of  their  own  creation,  in  the  Senate 
and  House  of  Representatives,  constituting  the  Congress  re- 
quired by  law  to  be  in  session  on  the  second  Wednesday  in 
February  succeeding  every  meeting  of  the  electors." 

But  a  study  of  the  annals  of  Congress  shows  that  the 
number  of  dissidents  is  far  greater  than  Pugh  assumed, 
and  that  it  includes  some  of  the  most  eminent  constitu- 
tional lawyers  who  have  ever  sat  in  either  House. 

Garland,  of  Arkansas,  who  subsequently  became  At- 
torney-General under  President  Cleveland,  and  who  had 
opposed  the  bill  of  1878,  resisted  its  progress  in  1882. 
He  acknowledged  that  it  was  **not  to  be  disguised  that 
it  is  the  most  important  question  that  can  be  brought  be- 
fore Congress  or  the  public,"  but,  in  his  opinion,  while 
the  Constitution  did  undertake  to  deal  with  the  question 
and  to  prescribe  how  the  thing  should  be  done,  it  was 
strangely  silent  as  to  matters  of  detail.  **The  Constitu- 
tion stops  short  of  doing  what  it  should  have  done.  If 
it  stops  short,  nothing  but  an  amendment  to  the  Consti- 
tution can  reach  the  case." 

The  bill  of  1882  underwent  amendment  in  the  House. 
The  House  committee  suggested  a  per  capita  vote  in 
joint  convention  as  a  substitute  for  the  concurrent  vote 


The  Act  of  February  3,  1887         217 

of  the  two  Houses  in  separate  session,  and  this  proposi- 
tion was  carried  in  the  House.  Eaton,  of  Connecticut, 
was  prominent  in  the  debate  in  support  of  the  constitu- 
tionality of  this  change,  but  he  inconsistently  afifirmed, 
with  great  solemnity,  that  the  exclusive  authority  to 
count  the  electoral  vote  was  reposed  in  the  House  of 
Representatives  alone/ 

On  December  8,  1885,  Edmunds  again  introduced  the 
measure  in  the  Senate.  It  was  referred  to  the  Committee 
on  Privileges  and  Elections,  reported  favorably  by  it,  and 
passed  by  the  Senate,  but  not  without  many  weighty 
expressions  of  dissent.  The  purpose  of  the  bill,  as  an- 
nounced in  its  title,  was  to  fix  the  day  for  the  meeting  of 
electors  of  President  and  Vice-President  and  to  provide 
for  and  regulate  the  counting  of  the  votes  for  President 
and  Vice-President  and  the  decision  of  questions  arising 
thereon.  Speaking  of  the  measure.  Senator  Hoar  de- 
clared that  it  had  been  the  subject  of  consideration  and 
discussion  for  more  than  twelve  years.  "The  debate 
may  almost  be  said  to  have  been  in  progress  during  the 
whole  time  since  the  December  session  of  1875.  The 
bill  has  passed  the  Senate  three  times,  I  believe,  almost 
unanimously."  In  advocating  its  passage.  Hoar  stated 
its  object  to  be  "to  remove  ...  by  legislation,  and 
without  an  amendment  to  the  Constitution,  a  difficulty 
which  grows  out  of  an  imperfection  in  the  Constitution 
itself."  Whatever  differences  of  opinion,  continued  Hoar, 
existed  earlier  in  our  history,  two  matters  have  been 
settled  by  the  present  generation :  first,  that  the  presi- 
dent of  the  Senate  has  not  the  power  to  count  the  elec- 
toral vote,  and,  secondly,  that  the  power  to  decide 
questions  and  make  the  count  is  not  exclusively  vested  in 
the  House  of  Representatives.     To  clothe  the  president 

'  "  As  I  believe  in  the  Almighty,  I  believe  this  House  has  sole  power  to 
count  the  electoral  vote,  as  in  no  other  way  can  it  be  determined  when  it  is 
to  elect  a  President." 


2i8  The  Electoral  System 

of  the  Senate  with  such  transcendent  office  would  have 
been  a  transgression  of  Lord  Coke's  maxim,  not  to 
make  a  man  a  judge  of  his  own  case,  for  the  Vice-Presi- 
dent is  frequently  a  candidate  for  the  presidential  office. 
There  was  "a  failure  of  the  Constitution,"  a  ''casus 
omissus,'"  a  "failure  to  provide  an  arbiter"  when  the  two 
Houses  disagreed.  The  provision  for  such  an  arbiter 
came  within  the  residuary  power  of  Congress. 

The  debate  in  the  Senate  clearly  reveals  the  fact  that 
opinion  by  no  means  unanimously  sustained  Hoar's  first 
proposition,  that  the  president  of  the  Senate  had  not  the 
power  to  count.  Nor  were  Senators  in  accord  in  their 
view  of  the  constitutionality  of  the  bill.  If  there  were  a 
casus  omissus  in  the  Constitution,  as  was  originally  argued 
by  Henry  Clay  in  1821,  had  Congress  power  under  the 
residuary  clause  of  the  Constitution  to  determine  where 
the  counting  authority  should  be  placed,  and  had  it 
authority  to  vest  the  power,  as  it  was  inevitable  that 
Congress  would  do,  in  itself?' 

Senator  Sherman,  who  was  an  opponent  of  the  Elec- 
toral Commission  bill  of  1877,  actively  fought  the  new 
measure  in  the  Senate,  pronouncing  it  to  be  unconstitu- 
tional in  principle  and  defective  in  detail.  He  especially 
challenged  the  provisions  of  the  bill  referring  to  single 
and  double  returns.  He  reviewed  the  history  of  the 
counts  in  1821,  in  1857,  during  reconstruction  times,  and 
in  1877.  Of  the  Electoral  Commission,  he  said:  "We 
came  to  a  point  that  did  really  threaten  our  national 
existence ;  when  civil  war  .  .  .  was  happily  avoided 
by  a  contrivance,— for  I  cannot  call  it  much  more,  and  I 

'  In  a  valuable  article  upon  "  The  Electoral  Count,"  3  Polit.  Set.  Quar- 
terly, pp.  632-652,  Professor  John  W.  Burgess  argues  for  the  existence  of 
the  power,  as  have  many  statesmen  since  the  debate  of  1800.  The  oppos- 
ing view  has  been  sufficiently  presented  in  foregoing  pages.  The  deepest 
objection  is  that  such  a  power  blends  and  confuses  governmental  functions 
which  the  authors  of  the  Constitution  intended  to  keep  separate. 


The  Act  of  February  3,  1887         219 

suppose  Senators  did  not  think  it  much  more;  I  did  not 
support  it' at  the  time,  but  it  was  a  wise  measure"  ;  and 
he  added,  "I  should  like  to  have  the  provisions  pointed 
out  to  me  which  authorized  Congress  to  make  such  a 
tribunal  for  such  a  purpose."  Sherman  trenchantly- 
criticised  the  sections  of  the  bill  then  before  the  Senate 
prescribing  the  procedure  in  case  one  return  was  received 
from  a  State,  and  he  also  objected  to  the  methods  the 
bill  proposed  for  the  solution  of  questions  arising  upon 
the  presentation  of  two  or  more  returns.  If  any  measure 
were  to  be  adopted,  he  favored  a  disposition  of  all  the 
problems  in  a  joint  session  of  the  two  Houses,  "polling 
each  House  separately  to  decide  the  result  by  a  vote  of 
a  majority  of  the  representatives  of  the  people  and  the 
representatives  of  the  States 'combined."  He  rightly 
argued  that  whatever  was  done  would  involve  more  or 
less  danger. 

**  Without  extending  this  debate  further,  this  matter  is  sur- 
rounded by  many  difficulties.  When  I  proposed  the  other  day 
that  the  question  should  finally  be  decided  by  the  two  Houses 
of  Congress  acting  in  a  joint  convention,  I  was  not  entirely 
satisfied,  because  I  could  see  that  that  involved  great  diffi- 
culties. ...  I  do  not  wish  to  continue  this  discussion 
further.  I  do  not  believe  that  in  the  present  condition  of  the 
bill  we  are  likely  to  come  to  any  wise  solution  of  it.  I  would 
rather  recommit  the  bill  to  the  Committee  on  Privileges  and 
Elections,  which  I  know  would  approach  this  question  with 
great  care.  At  any  rate  I  trust  that  we  shall  not  now  be 
forced  to  vote  upon  propositions  that  are  not  satisfactory  to 
the  Senate.  ...  I  would  rather  take  the  Supreme  Court 
of  the  United  States,  much  as  I  object  to  drawing  that  great 
tribunal  into  this  controversy,  because  that  court  would  at 
least  give  a  decision ;  it  would  say  which  of  two  returns  should 
be  counted." 

And  he  concluded  his  speech  with  the  renewed  assertion 
that  the  bill  was  not  a  sufficient  remedy  and  that  after 


2  20  The  Electoral  System 

thirteen  years' debate  a  point  had  not  been  reached  **  where 
the  other  House  or  the  Senate  can  be  satisfied  with  the 
solution  that  is  proposed  of  this  most  difficult  problem.'* 
Ingalls  made  an  eloquent  attack  upon  the  measure, 
satirically  intimating  that  in  such  an  opinion  as  Hoar's  it 
was  assumed  that  the  perfection  of  human  wisdom  had 
been  attained,  and 

"  that  any  attempt  to  reach  higher  excellence  could  not  result 
in  advantage  to  the  Senate  or  in  any  wiser  solution  of  the  con- 
fessed difficulties  by  which  this  question  is  surrounded." 
**  This  matter,"  he  justly  declared,  "  has  been  debated  since 
1789.  It  will  continue  to  be  debated,  no  matter  what  action 
may  be  taken  by  the  Senate,  until  there  is  a  constitutional 
amendment,  a  change  in  the  organic  law  that  shall  entirely 
take  the  subject  out  of  its  present  attitude  and  place  it  where 
it  should  be  placed,  in  accordance  with  the  predetermined 
will  of  the  American  people.  So  the  Senator  need  not  com- 
fort or  console  himself  by  the  ex.pectation  that,  by  any  piece 
of  legislative  patchwork  we  can  adopt  here,  debate  upon  this 
great  question  is  to  come  to  an  end." 

Ingalls  also  uttered  direct  and  wholesome  truth  about 
the  legislation  of  1877: 

**  The  Democratic  majority  in  the  House  of  Representatives 
at  that  time  never  would  have  consented  to  the  creation  of 
that  tribunal  [the  Electoral  Commission]  had  they  not  sup- 
posed that  the  fifteenth  member  of  the  Commission  under  the 
provisions  of  that  statute  was  in  favor  of  the  election  of  Samuel 
J.  Tilden.  We  all  know  the  providential  interposition  by 
which  that  great  and  good  man  David  Davis  of  Illinois  was 
removed  from  that  tribunal  and  translated  to  a  happier  sphere. 
In  the  dispensations  of  Providence,  he  was  transferred  from 
the  bench  of  the  Supreme  Court  to  the  Senate  of  the  United 
States  after  the  passage  of  the  bill,  and  thus  the  fifteenth  man 
upon  the  tribunal  was  in  favor  of  the  election  of  Mr.  Hayes  to 
the  presidency.     That  is  the  way  that  seven  to  eight  became 


The  Act  of  February  3,  1887         221 

changed  to  eight  to  seven.  I  have  heard  much  about  the 
patriotism  of  the  Democratic  party  in  that  contest  and  the 
moderation  of  its  candidate  in  consenting  to  this  measure,  and 
renouncing  the  presidency;  but  I  venture  to  say  that,  could 
they  have  foreseen  in  December,  1876  [January,  1877],  when 
that  bill  was  passed,  what  the  transmutations  of  politics  were  to 
bring  about,  there  never  would  have  been  a  concurrence  on 
the  part  of  the  House  of  Representatives  in  the  enactment  of 
the  Electoral  Commission  bill.  It  was  a  fatal  error  under  the 
Constitution  for  the  Democratic  party;  and  the  bill  we  are  now 
considering  is  but  a  faint  and  feeble  and  fragile  imitation  of 
the  Electoral  Commission.  ...  It  had  never  been  determined 
by  any  tribunal,  it  had  never  been  decided  by  any  competent 
authority,  that  the  phrase  *  the  votes  shall  then  be  counted ' 
might  not  by  an  absolutely  justifiable  inference  have  been  held 
to  mean  that  the  president  of  the  Senate,  being  the  custodian 
of  those  votes,  having  the  right  to  open  them,  had  also  the 
right  to  count  them;  and,  in  the  great  contests  of  the  future, 
emergencies  may  arise,  emergencies  are  not  unlikely  to  arise, 
in  the  state  of  the  law  on  this  subject,  when  it  might  be  well 
not  to  be  confronted  by  that  pernicious  precedent." 

Legislative  remedies,  in  Ingalls*  judgment,  were  utterly- 
futile.  Nothing  less  than  a  constitutional  amendment 
would  meet  the  difficulty. 

"  Careful  consideration  of  this  subject  will  convince  any 
thoughtful  student  of  the  Constitution  that  the  scheme  which 
has  been  devised  and  which  now  remains  in  our  organic  law 
is  fatally  defective,  and  that  nothing  can  be  done  by  way  of 
legislation  to  cure  the  inevitable  evils  by  which  it  is  sur- 
rounded; and  the  more  we  proceed  by  legislation  to  patch,  to 
bridge  over  apparent  difficulties,  to  abbreviate  the  number  of 
perils  which  surround  it,  by  so  much  we  retard  and  delay  the 
exercise  of  the  power  which  the  people  must  ultimately  be 
called  upon  to  perform  in  adopting  some  system  that  shall  re- 
move the  perils  in  which  it  is  now  environed." 


222  The  Electoral  System 

Evarts,  who  was  one  of  the  number  that  believed  in 
the  right  of  the  president  of  the  Senate  to  count,  advo- 
cated a  recommitment  of  the  bill,  with  the  amendments 
proposed,  to  the  committee,  for  "a  fuller  examination 
and  a  more  complete  treatment  of  all  the  possible  or 
probable  occasions  of  mischief  and  misconstruction  that 
may  arise  when  the  mere  act  of  the  counting  of  the 
vote  is  to  be  performed.  .  .  .  My  experience  in 
attending  upon  the  discussions  of  the  electoral  count 
satisfies  me  that  the  greatest  difficulties  are  from  the 
very  instant  and  very  limited  means  by  which  any  doubts 
are  to  be  solved."  To  one  serious  difficulty  he  called 
attention.  Before  the  House  of  Representatives  is 
authorized  to  elect  the  President,  it  must  appear  that  the 
count  shows  a  failure  of  a  majority  for  any  candidate  of 
all  the  electors  that  have  been  appointed.  To  ascertain 
how  the  result  stands,  we  must  first  learn  how  large  is  the 
whole  number  of  appointed  electors.  Suppose,  he  con- 
tinued, that,  in  1877,  the  three  votes  of  Oregon  had  been 
rejected  upon  the  ground  that  electors  had  not  been 
appointed : 

**  then  you  would  have  seen  that,  having  reduced  by  three  the 
whole  body  of  electoral  votes  to  be  computed  and  divided, 
Mr.  Tilden  by  having  184  votes  would  have  been  elected,  be- 
cause he  would  have  had  a  majority  of  the  whole  electoral  list 
reduced  by  three.  ...  I  know  no  more  critical,  no  more 
embarrassing  situation,  under  our  Constitution,  than  a  doubt 
produced  in  such  a  narrow  state  of  votes,  as  to  whether  the 
House  can  elect  or  whether  the  next  and  inferior  candidate  is 
elected  by  his  own  right  by  having  a  majority  of  the  reduced 
electoral  colleges." 

Evarts  might  have  drawn  an  equally  pertinent  illustration 
from  the  electoral  vote  of  Georgia  in  1873.  Three 
electors  then  voted  for  Greeley,  although  his  death 
occurred   before   the   members    of   the  electoral  college 


The  Act  of  February  3,  1887         223 

met.  The  House  of  Representatives,  upon  Hoar's  initia- 
tive, rejected  these  three  votes  as  void,  "the  said  Horace 
Greeley  having  died  before  the  votes  were  cast,"  but  the 
more  conservative  Senate  decided  they  ought  to  be 
counted,  for  the  reason,  doubtless, — although  the  debates 
are  not  clear  upon  the  point, — that  these  three  electors 
had  actually  been  appointed,  and  that  a  future  case  might 
arise  where  the  fact  of  appointment  might  become  of 
moment  in  ascertaining  the  total  number  of  electors  ap- 
pointed and  the  number  requisite  to  constitute  a  majority. 
It  would  have  been  a  bad  precedent  to  reject  these  votes 
as  null  and  void.  "It  was  an  important  question,"  as 
Morton  said  in  the  Senate  debate  of  March,  1876,  "be- 
cause it  went  to  determine  what  constituted  a  majority 
of  all  the  electors  appointed.  It  might  become  a  very 
important  question  in  a  future  contest." 

Although  disposed  at  first  to  view  with  favor  Sherman's 
suggestion  of  a  per  capita  vote  by  the  Houses  in  joint 
session,  Evarts,  upon  reflection,  withdrew  his  support. 
Nor,  he  said,  did  he  "look  with  complacency  upon  a 
reference  to  the  Supreme  Court  or  to  any  judicial  tribu- 
nal." He  was  also  hostile  to  the  opening  of  judicial 
proceedings  in  the  State  below  to  intercept  and  interpret 
or  suppress  the  vote  of  a  State. 

"The  framers  of  the  Constitution  looked  with  extreme 
solicitude  upon  the  principal  fact  and  result  that  a  President 
should  be  chosen;  .  .  .  their  chief  concern  was  .  .  . 
that  the  progress  from  the  first  act  of  voting  up  to  the  final 
declaration  should  be  as  little  impeded  and  as  little  interrupted 
as  possible." 

This  opposition  to  a  determination  by  a  proper  State 
tribunal  is  consistent  with  the  attitude  assumed  by 
Evarts  before  the  Electoral  Commission,  but  hardly  with 
the  prevailing  view  of  the  commission  itself. 

Evarts  drafted  an  amendment,  which  was  subsequently 


224  The  Electoral  System 

incorporated  in  the  third  section  of  the  bill,  requiring  the 
governor  of  each  State  to  certify  not  only  the  names  of 
electors,  but  also  the  number  of  votes  given  or  cast  for 
all  persons  voted  for  as  electors  by  the  people.  This,  he 
said,  was  neither  more  nor  less  than  was  required  for  the 
security  of  elections  in  our  own  States. 

Wilson,  of  Iowa,  doubted  the  power  of  Congress  to 
legislate  upon  the  subject  at  all.  The  fathers  were  cer- 
tainly fallible,  for  they  seemed  to  have  taken  for  granted 
that  no  questions  could  ever  arise  upon  the  subject  of 
counting  the  vote,  and  that  nothing  more  would  ever  be 
necessary  than  to  open  the  certificates  which  were  pro- 
duced in  the  presence  of  both  Houses  and  to  count  the 
number  and  names  as  returned.  *'The  bill  we  are  now 
considering  has  not,  in  my  judgment,  the  sanction  of  the 
Constitution."  Regarding  the  general  welfare  cause, 
which  was  relied  upon  in  justification  of  the  measure,  he 
said :  "Here  is  a  delegation  of  power  to  provide  for  carry- 
ing into  effect  the  power  to  open  and  count  the  votes  of 
the  electors  lodged  in  the  president  of  the  Senate.  But 
it  does  not  confer  on  Congress  the  power  to  assume  unto 
itself  the  duty  which  the  Constitution  imposes  on  that 
ofificer."  And  he  put  this  keen  interrogatory,  going  to 
the  crux  of  the  whole  subject: 

**  Can  we  conclude  that  the  framers  of  our  Constitution, 
when  they  conferred  on  the  respective  Houses  of  Congress 
these  extraordinary  powers  [as  in  certain  contingencies  to 
elect  President  and  Vice-President],  intended  to  invest  them 
with  the  still  more  extraordinary  power  of  rejecting  the  votes 
of  electors  appointed  by  the  several  States,  and  thereby  creat- 
ing, by  themselves  and  for  themselves,  the  contingency  which 
alone  gives  them  the  right  and  power  to  elect  a  President  and 
Vice-President?  The  mere  statement  of  such  a  proposition  is 
its  own  refutation.  And  if  no  such  power  rests  with  the  two 
Houses  for  concurrent  action,  how  much  more  preposterous 
does  it  seem  to  be  to  claim  that  it  rests  with  either  House 


The  Act  of  February  3,  1887         225 

alone,  and  especially  with  the  House  of  Representatives,  with 
which  body  the  power  to  elect  a  President  abides  in  the  event 
of  a  failure  of  the  electors  to  elect.  .  .  .  The  framers  of 
the  Constitution  clearly  indicated  their  purpose  to  exclude" 
Senators  and  Representatives  ' '  from  all  power  in  or  over  the 
matter  of  the  election  of  a  President  by  the  electors  appointed 
by  the  State.  .  .  .  Our  Constitution  in  this  regard  may 
not  be  in  the  best  form.  But  we  cannot  change  it  by  an  act 
of  Congress,  nor  by  such  act  confer  power  on  Congress  not 
given  by  the  Constitution.  It  is  no  new  thing  to  find  that  our 
Constitution  needs  amendment.  Fifteen  articles  of  amend- 
ments testify  to  this  fact.  If  we  have  discovered  a  defect  in 
the  respect  of  which  the  pending  bill  treats,  it  were  better  for 
us  to  do  what  has  been  done  fifteen  times  heretofore,  provide 
for  an  amendment  of  the  Constitution  in  manner  and  form  as 
it  points  out,  rather  than  resort  to  the  doubtful  expedient  now 
before  us." 

In  the  House  of  Representatives  the  progress  of  the 
bill  w^as  beset  by  similar  objections,  ably  presented. 

The  bill  of  1887  was  amended  when  it  reached  the 
House.  After  a  conference,  agreement  was  reached 
upon  the  bill  in  its  present  form.  Legislation  seemed  to 
be  imperatively  necessary,  for  the  neglect  of  previous 
Congresses  to  frame  an  adequate  law  or  a  proposed  con- 
stitutional amendment  had  led  the  country  in  1877  almost 
to  the  brink  of  revolution,  and  it  was  the  general  senti- 
ment of  the  supporters  of  the  bill  in  both  Houses  that 
some  enactment  must  be  placed  upon  the  statute  book, 
even  if  it  were  not  the  best  attainable.  No  trouble  had 
arisen  in  the  count  either  in  1881  or  1885.  Early  in 
February,  1881,  a  resolution  was  adopted  by  both  Houses 
which  in  effect  reinstated  the  method  in  use  before 
the  twenty-second  joint   rule  went  into  operation.'     It 

^  "  When  the  Houses  came  to  count  the  votes  in  Mr.  Garfield's  election, 
after  fruitless  efforts  to  provide  a  rule,  or  a  law,  under  which  they  could  be 
actually  counted,  it  was  necessary  to  resort  to  a  temporary  expedient  by 
which  all  questions  were  suppressed  that  could  give  rise  to  controversy,  in 


2  26  The  Electoral  System 

provided  for  two  tellers  on  the  part  of  the  Senate,  thus 
following  the  Electoral  Commission  law  of  1877,  ^^d  it 
further  provided  that  if  it  should  appear  that  the  electoral 
vote  of  any  State  had  been  given  on  any  other  day  than 
that  fixed  by  law,  which  was  the  case  of  Georgia,  the 
declaration  of  the  result  should  be  in  the  alternative  form 
adopted  in  1821  and  followed  in  1837  and  in  1857.  The 
count  of  1 88 1  took  place  under  this  resolution,  the  elec- 
toral vote  of  Georgia  being  counted  in  the  alternative. 
The  count  of  February  11,  1885,  was  in  accordance  with 
a  joint  resolution  adopted  by  both  Houses,  practically 
identical  in  form  with  the  first  portion  of  the  resolution 
of  1 88 1,  omitting  the  provisions  for  alternative  counting. 
The  first  section  of  the  statute  substituted  the  second 
Monday  of  January  for  the  first  Wednesday  of  December 
as  the  day  on  which  the  electors  of  each  State  should 
meet  and  give  their  votes.  The  object  of  Congress  in 
changing  a  date  which  had  been  in  effect  ever  since  the 
passage  of  the  act  of  1792  was  to  allow  more  time  for  the 
settlement  in  a  State  of  any  dispute  regarding  the  ap- 
pointment of  an  elector.  Unhappily  this  additional 
month  may  stimulate  nefarious  activity,  as  it  allows  so 
much  more  time  to  fabricate  objections  and  obtain  dual 
returns. 

order  to  declare  a  result  which  no  one  disputed,  but  which  left  the  vote  of 
Georgia  uncounted.  If  New  York  had  voted  for  General  Hancock,  Geor- 
gia voting,  as  she  did,  on  a  day  not  fixed  by  the  laws  of  the  United  States, 
the  result  would  probably  have  been  a  tie  in  the  electoral  college.  One 
vote  in  the  House  might  also  have  divided  the  States  equally,  and  the  Sen- 
ate in  that  event  would  have  chosen  a  Vice-President  who  would  have  be- 
come President,  or  else  a  person  not  elected  by  the  people  would  have 
captured  the  office.  It  would  have  been  beyond  the  bounds  of  a  reasonable 
hope  to  have  expected  a  peaceful  result  in  this  gauntlet  of  chances  to  which 
this  great  office  would  have  been  thus  exposed.  It  should  be  enough  to  say 
to  a  wise  people  that  all  questions  are  open  and  dangerous  that  relate  to  the 
counting  of  the  votes  of  electors.  They  are  as  numerous  as  it  is  possible 
for  the  ambition,  the  cupidity,  the  fraud,  and  the  skill  of  wicked  men  to 
invent." — "  Some  Dangerous  Questions,"  by  Senator  John  T.  Morgan,  133 
JV.  A.  R.,  315,  324. 


The  Act  of  February  3,  1887         227 

Section  2  provides  as  follows : 

"Sec.  2.  That  if  any  State  shall  have  provided,  by  laws 
enacted  prior  to  the  day  fixed  for  the  appointment  of  the 
electors,  for  its  final  determination  of  any  controversy  or  con- 
test concerning  the  appointment  of  all  or  any  of  the  electors 
of  such  State,  by  judicial  or  other  methods  or  procedures, 
and  such  determination  shall  have  been  made  at  least  six  days 
before  the  time  fixed  for  the  meeting  of  the  electors,  such  de- 
termination made  pursuant  to  such  law  so  existing  on  said 
day,  and  made  at  least  six  days  prior  to  the  said  time  of  meet- 
ing of  the  electors,  shall  be  conclusive,  and  shall  govern  in  the 
counting  of  the  electoral  votes  as  provided  in  the  Constitution, 
and  as  hereinafter  regulated,  so  far  as  the  ascertainment  of 
the  electors  appointed  by  such  State  is  concerned." 

The  section  provokes  several  comments.  Section  2  of 
the  Senate  bill  of  1882,  unlike  the  present  Section  2, 
provided  that  each  State,  pursuant  to  its  laws  existing 
on  the  day  fixed  for  the  appointment  of  the  electors, 
might  try  and  determine,  before  the  time  fixed  for  the 
meeting  of  the  electors,  any  controversy  concerning  their 
appointment,  and  that  every  such  determination  made 
pursuant  to  such  law  so  existing  on  said  day  and  made 
prior  to  the  said  time  of  meeting  of  the  electors,  should 
be  conclusive  evidence  of  the  lawful  title  of  the  electors 
who  should  have  been  so  determined  to  have  been 
appointed,  and  should  govern  in  the  counting  of  the 
electoral  votes  as  provided  in  the  Constitution,  and  as 
regulated  by  the  proposed  bill. 

Section  2  of  the  Act  of  1887  was  criticised  in  Congress, 
and  has  since  been  criticised,  as  conferring  undue  power 
upon  the  State.  Congress,  it  has  been  said,  renounces 
too  much  jurisdiction.  Professor  Burgess  declares  that 
the  section  "reveals  at  the  outset  an  excessively  States'- 
right  view  of  the  whole  subject,"  and  that  "from  a 
purely  scientific  standpoint  one  must  consider  the  provi- 


228  The  Electoral  System 

sion  an  ultra  and  unwise  concession  to  the  State,"  which, 
he  thinks,  is  grounded  upon  the  proposition  that  only 
the  State  in  which  the  controversy  or  contest  occurs  has 
any  interest  in  its  determination.  Nevertheless,  if  the 
prevailing  opinions  of  the  Electoral  Commission  of  1877 
are  to  be  treated  as  properly  defining  the  relative  limits 
of  State  and  national  power,  the  first  part  of  the  section 
is  in  accordance  with  the  constitutional  theory,  whether 
that  theory  be  scientific  or  not.  The  commissioners, 
both  Democratic  and  Republican,  agreed  to  the  proposi- 
tion that  State  control  was  absolute  over  the  appointment 
of  electors,  except  in  the  matter  of  time,  and  the  majority 
of  the  electoral  tribunal  decided  that  any  determination 
reached  by  the  State  as  to  the  title  of  her  electors  must 
precede  the  casting  of  the  electoral  ballot.  When  the 
Florida  case  was  before  the  commission,  the  Democratic 
counsel  argued  that  the  statute  enacted  by  Florida  in 
January,  1877,  and  the  judgment  of  her  circuit  court 
upon  the  title  of  electors  was  a  reversal  of  the  decision  of 
her  State  canvassing  board  and  binding  upon  the  com- 
mission; but  the  Republican  counsel  objected  to  this 
legislation  and  to  the  judgment,  as  ex  post  facto,  and 
were  sustained  by  the  commission.  Had  the  commission 
framed  the  first  part  of  this  section,  consistency  with  the 
views  of  the  majority  would  have  required  it  to  phrase 
that  part  as  it  now  reads. 

Section  2  of  the  Act  of  1887  requires  that  every  judicial 
or  other  determination  of  a  contest  over  the  appointment 
of  an  elector  must  be  settled  at  least  six  days  before  the 
time  fixed  for  the  meeting  of  the  electors,  as  well  as 
settled  by  law  existing  prior  to  that  day.  So  apathetic 
have  the  people  remained  since  the  crisis  of  1877  that 
none  of  the  States  have  provided  by  legislation  for  the 
settlement  of  controversies  of  contests  concerning  the 
appointment  of  their  electors. 

But  whether  Congress  has  not  transcended  its  powers 


The  Act  of  February  3,  1887         229 

in  requiring  that  the  State  decision  must  be  reached  at 
least  six  days  before  the  second  Monday  of  January,  is  a 
matter  for  grave  doubt.  The  Federal  Constitution 
clothes  the  States  with  absolute  control  over  the  appoint- 
ment of  their  electors,  except  as  to  the  day  of  appoint- 
ment, and  it  is  difficult  to  perceive  how  Congress  can 
interfere  with  this  control  for  a  single  moment.  Dibble 
argued  that  the  six-day  limitation  was  improper. 

**  Up  to  the  day  of  election,  the  day  when  the  electors  are 
to  cast  their  votes,  the  State  power  as  to  appointment  cannot 
be  interfered  with  in  any  manner,  shape,  or  form  by  the  Con- 
gress of  the  United  States,  or  by  any  other  power.  Up  to 
that  time  the  State  stands  fortified  by  the  privilege  granted  in 
the  Constitution.  The  fact  that  the  day  is  to  be  designated 
by  Congress  and  is  to  be  the  same  throughout  the  United 
States  of  course  limits  the  time  when  the  appointing  power 
can  be  exercised." 

The  same  objection  had  previously  been  made  by  Eaton 
of  the  House,  who  was  reminded  by  Browne  that  the 
section  merely  declared  what  evidence  Congress  would 
receive  as  conclusive  of  the  fact  of  the  selection  of  a  par- 
ticular elector  by  the  State.  But  Dibble's  objection  was 
valid,  if  it  be  assumed  that  the  States  have  exclusive 
control  over  the  appointment  of  their  electors.  In  a 
matter  of  such  momentous  importance  as  the  correct 
determination  of  the  electoral  vote  of  a  State,  it  is  hardly 
befitting  the  dignity  of  Congress  to  take  a  sort  of  snap 
judgment  against  the  State  by  declaring  that  the  solemn 
adjudications  of  its  tribunals  will  be  treated  as  conclusive 
upon  Congress  only  when  made  at  least  six  days  before 
the  electors  meet  to  vote.  This  provision  might  result 
in  the  gross  injustice  to  the  State  of  sustaining  the  title 
of  one  set  of  electors,  although  the  highest  court  of  the 
State  had,  before  the  electoral  vote  was  cast,  decided  that 
set  of  electors  to  have  no  title,  and  their  opponents,  whose 


230  The  Electoral  System 

certificate  might  also  be  before  Congress,  the  actual  rep- 
resentatives of  the  voice  of  the  commonwealth.  The 
interposition  of  the  absolute  bar  of  a  judgment  which 
Congress  will  treat  as  conclusive  must,  if  it  have  any 
meaning,  operate  as  an  interference  with  the  State's  full 
control.  The  distinction  between  the  appointment  and 
the  validity  of  the  acts  of  the  electors  is  fundamental  and 
must  not  be  lost  sight  of.  The  appointment,  if  made 
upon  the  prescribed  day,  is  the  sole  concern  of  the  State. 
But  whether  electors  are  constitutionally  eligible,  and 
whether  they  have  voted  in  conformity  with  the  Consti- 
tution of  the  United  States,  are  questions  which,  as  was 
intimated  in  the  discussion  of  the  Louisiana  case,  may 
be  of  wider  import  and  may  affect  all  the  States. 

Section  3  of  the  statute  is  as  follows : 

"  Sec.  3.  That  it  shall  be  the  duty  of  the  executive  of  each 
State,  as  soon  as  practicable  after  the  conclusion  of  the  ap- 
pointment of  electors  in  such  State,  by  the  final  ascertainment 
under  and  in  pursuance  of  the  laws  of  such  State  providing  for 
such  ascertainment,  to  communicate,  under  the  seal  of  the 
State,  to  the  Secretary  of  State  of  the  United  States,  a  certifi- 
cate of  such  ascertainment  of  the  electors  appointed,  setting 
forth  the  names  of  such  electors  and  the  canvass  or  other 
ascertainment  under  the  laws  of  such  State  of  the  number  of 
votes  given  or  cast  for  each  person  for  whose  appointment  any 
and  all  votes  have  been  given  or  cast;  and  it  shall  also  there- 
upon be  the  duty  of  the  executive  of  each  State  to  deliver  to 
the  electors  of  such  State,  on  or  before  the  day  on  which  they 
are  required  by  the  preceding  section  to  meet,  the  same  cer- 
tificate, in  triplicate,  under  the  seal  of  the  State;  and  such 
certificate  shall  be  inclosed  and  transmitted  by  the  electors 
at  the  same  time  and  in  the  same  manner  as  is  provided 
by  law  for  transmitting  by  such  electors  to  the  seat  of  govern- 
ment the  lists  of  all  persons  voted  for  as  President,  and  of 
all  persons  voted  for  as  Vice-President;  and  Section  136  of 
the  Revised  Statutes  is  hereby  repealed;  and  if  there  shall 
have  been  any  final  determination  in  a  State  of  a  controversy 


The  Act  of  February  3,  1887         231 

or  contest,  as  provided  for  in  Section  2  of  this  act,  it 
shall  be  the  duty  of  the  executive  of  such  State,  as  soon  as 
practicable  after  such  determination,  to  communicate,  under 
the  seal  of  the  State,  to  the  Secretary  of  State  of  the  United 
States,  a  certificate  of  such  determination,  in  form  and  manner 
as  the  same  shall  have  been  made;  and  the  Secretary  of  State 
of  the  United  States,  as  soon  as  practicable  after  the  receipt 
at  the  State  Department  of  each  of  the  certificates  hereinbe- 
fore directed  to  be  transmitted  to  the  Secretary  of  State,  shall 
publish,  in  such  public  newspaper  as  he  shall  designate,  such 
certificates  in  full;  and  at  the  first  meeting  of  Congress,  there- 
after, he  shall  transmit  to  the  two  Houses  of  Congress  copies  in 
full  of  each  and  every  such  certificate  so  received  theretofore 
at  the  State  Department."  * 

Several  important  questions  arise  under  this  section. 
The  section  makes  it  the  duty  of  the  executive  of  each 
State  to  "communicate"  to  the  Secretary  of  State  of  the 
United  States  a  certificate  giving  the  names  of  the  elec- 
tors and  the  canvass  showing  the  votes  given  or  cast  for 
each  aspirant  for  that  office.  It  is  also  his  duty  to  deliver 
to  the  electors  themselves  a  certificate  in  triplicate  to  the 
same  effect,  and  the  certificate  is  to  be  transmitted  by 
the  electors,  together  w^ith  the  return  showing  for  whom 
they  have  voted  for  President  and  Vice-President.  But 
how  is  the  duty  of  the  executive  to  be  enforced?  Sup- 
pose a  State  executive,  following  the  example  of  Gover- 
nor Grover  of  Oregon  in  1877,  should  decline  to  furnish 

'  The  framers  of  the  law  of  1887  neglected  to  change  Section  141  of  the 
revision  of  the  statutes  (containing  the  original  provision  of  the  Act  of  1792), 
that  whenever  a  certificate  of  a  vote  from  a  State  had  not  been  received  at 
the  seat  of  government  on  the  first  Wednesday  of  January  after  an  election, 
the  Secretary  of  State  should  send  a  special  messenger  to  the  district  judge 
in  whose  custody  one  of  the  certificates  of  the  vote  of  the  State  had  been 
required  to  be  lodged.  As  the  Act  of  1887  requires  the  electors  to  vote  on 
the  second  Monday  of  January,  this  section  needed  amendment.  Con- 
gress, accordingly,  on  October  19,  1888,  amended  Section  141  so  as  to 
change  the  date  therein  to  the  fourth  Monday  of  January. 


232  The  Electoral  System 

a  certificate  to  a  candidate  ultimately  decided  to  be  ap- 
pointed and  to  be  entitled  thereto?     What  is  to  happen? 

It  is  questionable  whether  the  Evarts  amendment  is 
salutary.  So  long  as  the  State  has  made  its  determina- 
tion, and  certified  it  in  the  statutory  manner,  it  is  of  no 
moment  to  Congress  to  be  advised  of  any  facts  underlying 
the  State  returns.  Why  Congress  should  busy  itself  with 
the  number  of  votes  cast  for  an  elector  it  is  difficult  to 
conjecture.  Similar  tabulations  accompanied  the  con- 
flicting returns  in  1877,  but  the  commission  paid  no 
heed  to  them.  Even  in  Oregon's  case  these  tabulations 
were  ignored,  the  commission  accepting  a  certificate  of 
Oregon's  secretary  of  State  as  a  determination  by  the 
State  canvassing  authority.  Nothing  properly  belongs 
before  Congress  or  the  counting  power  except  ultimate 
State  results.  It  was  of  far  more  consequence  that  the 
law  should  prescribe  whether  it  is  mandatory  upon  the 
State  governor  to  deliver  to  the  electors  the  certificate 
required  by  the  Act  of  1792,  and  what  should  be  the 
consequence  of  a  failure  on  his  part  so  to  do,  or  how  his 
neglect  should  be  remedied.  The  act  should  also  have 
prescribed  how  the  certificate  might  be  impeached,  as- 
suming, as  the  Electoral  Commission  did,  that  it  was  im- 
peachable. To  be  complete,  the  act  should  not  only 
have  defined  all  vague  terms  used  therein,  but  have  care- 
fully distinguished  between  the  appointment  of  electors 
and  the  exercise  of  electoral  functions  by  lawful  electors, 
the  one  subject  being  exclusively  within  State  cognizance, 
the  other,  at  least  according  to  a  respectable  amount  of 
opinion,  and,  as  I  interpret  it,  according  to  the  act  itself, 
a  matter  exclusively  of  Federal  supervision. 

The  section  which  evoked  the  most  debate,  which  was 
amended  in  the  House,  and  assumed  its  final  form  only 
after  a  conference  between  the  two  Houses,  is  Section 
4,  which  is  as  follows : 

"  Sec.  4.  That  Congress  shall  be  in  session  on  the  second 


The  Act  of  February  3,  1887         233 

Wednesday  in  February  succeeding  every  meeting  of  the 
electors.  The  Senate  and  House  of  Representatives  shall 
meet  in  the  hall  of  the  House  of  Representatives  at  the  hour 
of  one  o'clock  in  the  afternoon,  on  that  day,  and  the  president 
of  the  Senate  shall  be  their  presiding  officer.  Two  tellers 
shall  be  previously  appointed  on  the  part  of  the  Senate  and 
two  on  the  part  of  the  House  of  Representatives,  to  whom  shall 
be  handed,  as  they  are  opened  by  the  president  of  the  Senate, 
all  the  certificates  and  papers  purporting  to  be  certificates 
of  the  electoral  votes,  which  certificates  and  papers  shall  be 
opened,  presented,  and  acted  upon  in  the  alphabetical  order 
of  the  States,  beginning  with  the  letter  A;  and  said  tellers, 
having  then  read  the  same  in  the  presence  and  hearing  of  the 
two  Houses,  shall  make  a  list  of  the  votes  as  they  shall  appear 
from  the  said  certificates;  and,  the  votes  having  been  ascer- 
tained and  counted  in  the  manner  and  according  to  the  rules 
in  this  act  provided,  the  result  of  the  same  shall  be  delivered 
to  the  president  of  the  Senate,  who  shall  thereupon  announce 
the  state  of  the  vote,  which  announcement  shall  be  deemed  a 
sufficient  declaration  of  the  persons,  if  any,  elected  President 
and  Vice-President  of  the  United  States,  and,  together  with  a 
list  of  the  votes,  be  entered  on  the  journals  of  the  two  Houses. 
Upon  such  reading  of  any  such  certificate  or  paper,  the  presi- 
dent of  the  Senate  shall  call  for  objections,  if  any.  Every 
objection  shall  be  made  in  writing,  and  shall  state  clearly  and 
concisely,  and  without  argument,  the  ground  thereof,  and 
shall  be  signed  by  at  least  one  Senator  and  one  member  of  the 
House  of  Representatives  before  the  same  shall  be  received. 
When  all  objections  so  made  to  any  vote  or  paper  from  a  State 
shall  have  been  received  and  read,  the  Senate  shall  thereupon 
withdraw,  and  such  objections  shall  be  submitted  to  the  Senate 
for  its  decision;  and  the  Speaker  of  the  House  of  Representa- 
tives shall,  in  like  manner,  submit  such  objections  to  the 
House  of  Representatives  for  its  decision;  and  no  electoral 
vote  or  votes  from  any  State  which  shall  have  been  regularly 
given  by  electors  whose  appointment  has  been  lawfully  certified 
to  according  to  Section  3  of  this  act,  from  which  but  one  re- 
turn has  been  received,  shall  be  rejected,  but  the  two  Houses 


234  The  Electoral  System 

concurrently  may  reject  the  vote  or  votes  when  they  agree  that 
such  vote  or  votes  have  not  been  so  regularly  given  by  electors 
whose  appointment  has  been  so  certified.  If  more  than  one 
return  or  paper  purporting  to  be  a  return  from  a  State  shall 
have  been  received  by  the  president  of  the  Senate,  those  votes, 
and  those  only,  shall  be  counted  which  shall  have  been  regu- 
larly given  by  the  electors  who  are  shown  by  the  determination 
mentioned  in  Section  2  of  this  act  to  have  been  appointed,  if 
the  determination  in  said  section  provided  for  shall  have 
been  made,  or  by  such  successors  or  substitutes,  in  case  of 
a  vacancy  in  the  board  of  electors  so  ascertained,  as  have 
been  appointed  to  fill  such  vacancy  in  the  mode  provided 
by  the  laws  of  the  State;  but  in  case  there  shall  arise  the 
question  which  of  two  or  more  of  such  State  authorities  de- 
termining what  electors  have  been  appointed,  as  mentioned 
in  Section  2  of  this  act,  is  the  lawfult  ribunal  of  such  State, 
the  votes  regularly  given  of  those  electors,  and  those  only, 
of  such  State  shall  be  counted  whose  title  as  electors  the 
two  Houses,  acting  separately,  shall  concurrently  decide  is 
supported  by  the  decision  of  such  State  so  authorized  by  its 
laws;  and  in  such  case  of  more  than  one  return  or  paper 
purporting  to  be  a  return  from  a  State,  if  there  shall  have 
been  no  such  determination  of  the  question  in  the  State  afore- 
said, then  those  votes,  and  those  only,  shall  be  counted  which 
the  two  Houses  shall  concurrently  decide  were  cast  by  lawful 
electors  appointed  in  accordance  with  the  laws  of  the  State, 
unless  the  two  Houses,  acting  separately,  shall  concurrently 
decide  such  votes  not  to  be  the  lawful  votes  of  the  legally  ap- 
pointed electors  of  such  State.  But  if  the  two  Houses  shall 
disagree  in  respect  of  the  counting  of  such  votes,  then,  and  in 
that  case,  the  votes  of  the  electors  whose  appointment  shall 
have  been  certified  by  the  executive  of  the  State,  under  the 
seal  thereof,  shall  be  counted.  When  the  two  Houses  have 
voted,  they  shall  immediately  again  meet,  and  the  presiding 
officer  shall  then  announce  the  decision  of  the  questions  sub- 
mitted. No  votes  or  papers  from  any  other  State  shall  be 
acted  upon  until  the  objections  previously  made  to  the  votes 
or  papers  from  any  State  shall  have  been  finally  disposed  of." 


The  Act  of  February  3,  1887         235 

This  section  embodies  in  statutory  form  the  practice 
which  has  prevailed  for  several  generations.  The  pro- 
vision for  two  tellers  on  the  part  of  the  Senate  is  taken 
from  the  Electoral  Commission  law  of  1877. 

In  the  case  of  a  single  return  from  a  State  Section  4 
prescribes  that  no  electoral  vote  or  votes  from  a  State, 
which  shall  have  been  regularly  given  by  electors  whose 
appointment  has  been  lawfully  certified  according  to 
Section  3,  shall  be  rejected,  except  where  the  two 
Houses  concurrently  agree  that  its  votes  have  not  been 
regularly  given. 

The  main  objection  to  this  clause  was  fairly  stated  by 
Senator  Sherman  in  December,  1886.  "That,"  he  ar- 
gued, "is  a  dangerous  power.  It  allows  the  two  Houses 
of  Congress,  which  are  not  armed  with  any  constitutional 
power  whatever  over  the  electoral  system,  to  reject  the 
vote  of  every  elector  from  every  State,  with  or  without 
cause,  provided  they  are  in  harmony  in  that  matter." 
The  language  is  none  too  strong.  If  a  Congress,  pro- 
tected by  an  adequate  vote  in  each  chamber,  wished  to 
destroy  the  Government,  this  provision  would  enable  it 
to  do  so.  It  permits  a  majority,  upon  technical  grounds, 
to  defeat  the  popular  will,  to  nullify  constitutional  gov- 
ernment, and  prevent  the  inauguration  of  a  new  President ; 
and  the  danger  grows  out  of  the  fact  that  Congress  has 
invaded  a  province  or  department  of  the  Government 
which  the  framers  of  the  Constitution  planned  to  keep 
absolutely  aloof  from  and  independent  of  the  legislative 
branches.  Nor  are  fears  of  a  majority  idle  or  chimerical. 
The  security  of  the  Government  lies  in  the  constitutional 
distribution  of  power.  The  Act  of  1887  puts  the  very 
being  of  the  nation  at  the  mercy  of  a  majority  in  either 
House, — a  thing  not  only  never  dreamed  of  by  the  fathers, 
but  the  possibility  of  which  they  believed  they  had  effec- 
tually averted.  This  provision  was  criticised  in  the  re- 
port of  the  minority  of  the  House  committee. 


236  The  Electoral  System 

Congress,  from  the  outset  of  the  Constitution,  has 
gradually  been  usurping  a  jurisdiction  over  the  electoral 
system.  It  is  not  necessary  to  decide  whether  the  presi- 
dent of  the  Senate  was  to  count  the  electoral  vote. 
Whatever  the  ambiguity  of  the  original  expression  "the 
votes  shall  then  be  counted,"  whatever  doubt  arises  as 
to  the  true  depositary  of  the  counting  power  or  as  to  the 
extent  of  that  power,  one  thing  seems  beyond  contra- 
diction :  that  the  Constitution  intended  the  operations  of 
the  electoral  system,  in  all  its  phases,  to  be  free  from 
congressional  interference  or  control.  Even  the  Con- 
gress of  1877,  that  framed  the  Electoral  Commission  bill, 
would  not  declare  that  the  counting  power  was  in  Con- 
gress ;  this  dangerous  and  revolutionary  theory  first  finds 
place  upon  the  statute-book  after  one  hundred  years  of 
national  existence,  in  the  Act  of  1887. 

It  is  difficult  to  find  any  basis  in  logic  or  reason  for 
such  congressional  domination  in  the  case  of  only  a  single 
return  from  a  State.  Section  2  of  the  act  is  at  its 
outset  predicated  upon  the  just  assumption  that  the  ap- 
pointment of  electors  is  the  sole  concern  of  the  State, 
and  that  the  appointment  may  be  reviewed  by  the  appro- 
priate State  tribunal.  Thus  far  the  act  is  based  upon 
the  constitutional  theory  of  the  electoral  office.  Any 
final  determination  by  the  State  authority  of  any  contest 
or  controversy  as  to  the  appointment  of  its  electors  is 
by  section  two  made  conclusive,  and  is  to  govern  in  the 
counting  of  the  electoral  vote,  so  far  as  the  ascertainment 
of  the  electors  appointed  by  the  State  is  concerned, — 
language  plainly  implying  a  discrimination  in  the  legis- 
lative mind  between  the  function  of  the  State,  which  is 
that  of  appointing,  and  the  function  of  the  counting 
power,  which  is  to  pass  upon  the  regularity  of  the  vote. 
And  the  State  executive  is  required  by  Section  3  to 
certify  to  the  appointment,  and  also  to  the  determination 
of  a  controversy  where  any  such  decision  has  been  made. 


The  Act  of  February  3,  1887         237 

The  Section  (4)  clearly  means  that  in  case  of  such 
prior  determination  in  the  State,  only  the  regularity  of 
the  votes  given  shall  be  questioned  in  the  two  Houses. 
But  what  shall  happen  to  the  vote  of  the  State,  if  the 
two  Houses  do  not  separately  agree  that  it  has  been 
regularly  given?  Is  it  to  be  lost?  If  so,  the  vote  of  a 
State  is  sure  to  be  counted  only  when  both  Houses  agree 
that  it  has  been  regularly  given.  This  clause  of  Section 
4  and  every  other  clause  of  the  section  raises  the  ques- 
tion so  exhaustively  considered  in  the  debate  of  1876 
upon  the  Morton  bill,  as  to  the  effect  of  non-concurrence 
of  the  Houses  upon  the  State's  vote. 

The  subject  of  multiple  returns  must  be  treated  under 
several  aspects.  In  the  first  place,  if  there  has  been  a 
determination  in  a  State  of  a  contest  over  the  appoint- 
ment of  electors,  the  votes  regularly  given  by  electors 
declared  appointed  by  this  determination  are  to  be  ac- 
cepted by  Congress,  and  the  others  discarded  from  con- 
sideration. In  this  single  instance  Congress  renounces 
all  right  of  inquiry  into  the  State  vote  except  to  ascertain 
what  votes  have  been  regularly  given,  a  field  of  inquiry 
that  may  cover  electoral  disqualifications  and  votes  by 
eligible  electors  for  unconstitutional  candidates.  If  the 
two  Houses  do  not  separately  concur  that  the  votes  are 
regular,  State  disfranchisement  ensues.^  In  the  second 
case,  if  conflicting  State  authorities  or  tribunals,  two  ex- 
ecutives, for  example,  certify  to  diff"erent  sets  of  electors, 
"the  votes  regularly  given  of  those  electors,  and  those 
only,  of  such  State  shall  be  counted  whose  title  as  electors 

'  *'  It  is  not  expressly  stated  in  this  period  of  the  section  that  if  the  two 
Houses  in  separate  assembly  decide  that  such  electors  have  not  given  their 
votes  regularly,  they  may,  by  concurrent  action,  reject  these  votes,  though 
it  is  to  be  presumed  that  such  is  the  meaning  of  the  law.  The  language  of 
this  paragraph  is  very  confused,  almost  unintelligible  ;  and  since  we  have, 
as  yet,  had  no  actual  precedents  of  interpretation,  there  are  several  points 
concerning  which  our  predications  cannot  claim  the  attribute  of  certainty." 
—Burgess,  3  P.  Q.  S.,  643. 


2Z^  The  Electoral  System 

the  two  Houses,  acting  separately,  shall  concurrently  de- 
cide is  supported  by  the  decision  of  such  State  so  author- 
ized by  its  laws."  In  this  class  of  cases  the  two  Houses 
acting  separately  are  given  the  power  concurrently  to 
decide  upon  the  title  of  electors,  as  well  as  upon  the 
regularity  of  their  votes.  And  if  they  should  fail  to 
agree  that  a  set  of  electors  represents  the  State,  there  is 
no  provision  as  to  what  shall  happen,  but  presumably 
the  vote  of  the  State  is  to  be  sacrificed.  Or,  in  the  case 
under  examination,  after  having  agreed  upon  the  title  of 
the  electors,  the  Houses  may  disagree  as  to  whether  the 
votes  have  been  regularly  given,  in  which  event  the  State 
loses  its  vote.  In  questioning  the  title  of  electors,  how 
far  is  the  inquiry  to  go?  The  act  does  not  fix  limitations. 
Thus  in  this  class  of  cases  the  State  has  two  chances  of 
disfranchisement.  Here  Congress  arrogates  a  power  of 
review  of  the  decision  of  the  State  tribunal,  and  if  the 
two  Houses  do  not  concur  (which  they  would  not,  if  of 
opposite  political  complexion)  the  vote  of  the  State  is 
lost.  In  this  particular  case,  as  Sherman  pointed  out  in 
the  Senate,  Congress  is  given  "the  power  to  exclude  the 
vote  of  New  York  or  any  other  State  in  the  Union,  not 
by  the  will  of  the  two  Houses,  but  by  the  veto  of  either 
House"  ;  and,  as  he  forcibly  added,  "If  the  Senate  should 
reject  the  vote  of  a  State  and  thus  secure  a  party  advan- 
tage, the  House  could  reject  the  vote  of  another  State  to 
secure  a  like  advantage." 

In  the  third  case,  where  there  has  been  more  than  one 
return,  but  no  decision  by  a  State  tribunal  upon  the  ap- 
pointment of  electors,  the  State  may  be  disfranchised 
through  the  failure  of  the  two  Houses  to  agree.  The 
language  is: 

**  Those  votes  and  those  only  shall  be  counted  which  the  two 
Houses  shall  concurrently  decide  were  cast  by  lawful  electors, 
appointed  in  accordance  with  the  laws  of  the  State,  unless  the 


The  Act  of  February  3,  1887         239 

two  Houses,  acting  separately,  shall  concurrently  decide  such 
votes  not  to  be  the  lawful  votes  of  the  legally  appointed  elec- 
tors of  the  State.  But  if  the  two  Houses  shall  disagree  in  re- 
spect of  the  counting  of  such  votes,  then,  and  in  that  case,  the 
votes  of  the  electors  whose  appointment  shall  have  been  certi- 
fied by  the  executive  of  the  State,  under  the  seal  thereof,  shall 
be  counted." 

The  two  Houses  may  in  this  class  of  cases  inquire  whether 
the  electors  have  been  legally  appointed  and  also  whether 
their  votes  are  lawful  votes.  If  the  two  Houses  disagree 
upon  either  proposition,  the  votes  (the  word  "lawful  "  is 
omitted  before  "votes  ")  of  the  electors  who  are  fortified 
in  their  appointment  by  the  certificate  of  the  State  ex- 
ecutive are  to  be  counted.  In  this  one  case  of  a  double 
return,  a  difference  of  opinion  between  the  two  Houses 
will  not  lead  to  the  rejection  of  the  State's  vote,  if  there 
is  a  certificate  of  the  State  executive  as  to  the  appoint- 
ment of  the  electors.  In  the  fourth  case,  the  same  broad 
powers  are  conferred  upon  the  two  Houses.  Where 
there  is  more  than  one  return  from  a  State,  in  which 
there  has  been  no  determination  of  the  question  who  are 
its  electors,  and  neither  of  the  rival  sets  of  electors  is 
furnished  with  the  certificate  of  the  executive,  the  two 
Houses  may  determine  who  are  the  lawful  electors  of  the 
State,  and  the  votes  of  such  electors  shall  be  counted, 
unless  the  two  Houses  by  concurrent  resolution  decide 
that  such  electors  have  not  given  their  votes  regularly  or 
lawfully.  But  if  another  Oregon  case  should  arise,  the 
vote  would  be  certain  to  be  sacrificed,  unless  the  two 
Houses  were  in  political  affinity, — as  they  were  not  in 

1877. 

The  scope  of  this  particular  clause  is  uncertain.  Re- 
curring again  to  the  Oregon  case,  and  assuming  that  one 
set  of  electors  presented  the  certificate  of  the  governor, 
as  did  Cronin,  Miller,  and  Parker,  in  1877,  while  their 


240  The  Electoral  System 

antagonists  were  armed  with  the  certificate  of  the  secre- 
tary of  State,  would  this  case  present  the  question"  Which 
of  two  or  more  such  State  authorities  determining  what 
electors  have  been  appointed,  as  mentioned  in  Section 
2  of  this  act,  is  the  lawful  tribunal  of  such  State"?  If 
so,  those  votes  only  would  be  counted  which  the  two 
Houses  acting  separately  should  concurrently  decide  to 
be  supported  by  the  decision  of  such  State  so  authorized 
by  its  laws;  and  upon  that  construction,  had  the  law  been 
in  operation  in  1877,  Watts'  vote,  if  not  the  votes  of 
Odell  and  Cartwright  also,  would  not  have  been  counted, 
as  the  two  Houses  failed  to  agree.  On  the  other  hand, 
if  the  supposititious  Oregon  case  is  to  be  treated  as  a  case 
"where  there  was  no  determination  of  the  question  in  the 
State,"  unless  the  two  Houses  agreed, — which  they  did 
not  in  1877, — "the  votes  of  the  electors  whose  appoint- 
ment shall  have  been  certified  by  the  executive  of  the 
State,  under  the  seal  thereof,  shall  be  counted,"  unless 
not  regularly  or  lawfully  given ;  in  other  words,  the  votes 
of  Cronin,  Miller,  and  Parker,  who  were  armed  with  Gov- 
ernor Grover's  certificate,  would  have  to  be  counted.  In 
the  first  case  two  out  of  three  Republican  votes  would 
have  been  counted,  or  no  vote  at  all  would  have  been 
counted ;  in  the  second,  the  vote  of  all  the  Democratic 
electors  would  have  been  counted.  Thus,  a  political 
majority  in  control  of  both  Houses  may  reject  the  vote 
of  a  State  when  there  has  been  no  decision  by  a  tribunal 
of  the  State  upon  conflicting  returns,  and  likewise,  "in 
case  there  shall  arise  the  question  which  of  two  or  more 
State  authorities  determining  what  electors  have  been 
appointed  ...  is  the  lawful  tribunal,"  a  majority 
in  both  Houses  may  throw  out  the  vote  of  the  State; 
and  in  the  case  of  a  single  return  also  Congress  reserves 
like  control. 

Fortunately,  or  perhaps  unfortunately,  no  occasion  has 
arisen  to  test  the  Act  of  1887,  but  it  suggests  problems 


The  Act  of  February  3,  1887         241 

which  must  some  day  be  perplexing  and  gravely  embar- 
rassing.' The  provisions  giving  Congress  any  review  of 
the  determination  of  a  State  tribunal  are,  I  think,  un- 
constitutional, and  all  assumption  of  the  counting  power 
by  Congress  is  in  defiance  of  the  spirit,  if  not  the  letter, 
of  the  organic  law. 

Such  legislation  is  but  clumsy  patcljiwork  at  best.* 
What  it  does  is  to  reveal  the  defects  and  lay  bare  the  de- 
formities of  the  whole  electoral  system.  We  may  regard, 
even  reverence,  the  work  of  the  framers  of  the  Constitu- 
tion without  extolling  it  as  perfect.  After  a  century's 
experience  candor  compels  the  admission  that  what  the 
Federalist  praised  as  "excellent,  if  not  perfect,"  is  a 
failure.  Electors  are  not,  and  for  a.  century  have  not 
been,  the  independent  choosers  of  a  President  they  were 
expected  to  be,  but  have  become^  the  slaves  of  party ; 
more  strictly  puppets  than  the  electors  who  formerly 
chose  the  Emperor  of  Germany ;  the  machinery  for  count- 
ing the  electoral  votes  is  so  defective  that  it  has  on  several 
occasions  prevented  a  true  count,  and  has  twice  threat- 

'  "  Suppose  that  only  one  return  has  been  made  from  a  State,  and  there 
has  been  no  final  determination  of  the  controversy  or  contest  in  the  State, 
and  upon  opening  the  certificates  the  objection  is  made  that  the  appoint- 
ment of  the  electors  has  not  been  lawfully  certified  or  that  their  votes  have 
not  been  regularly  given,  or  that  some  of  them  hold  ofBces  of  trust  or  profit 
under  the  United  States,  or  that  they  were  appointed  on  the  wrong  day ; 
or  suppose  that  all  the  proceedings  were  regular  on  their  face,  that  all  the 
electors  were  duly  chosen  and  qualified,  and  found  to  be  so  by  the  State 
tribunal,  but  objection  is  made  that  the  person  voted  for  as  President  was 
not  a  natural-born  citizen  of  the  United  States,  or  was  not  thirty-five  years 
old,  or  had  not  been  a  resident  of  the  United  States  for  fourteen  years, — it 
is  not  going  too  far  to  say  that,  if  the  result  of  the  election  should  depend 
upon  the  decision  of  any  one  of  these  questions,  by  a  partisan  Congress, 
there  would  be  at  least  very  great  danger  of  civil  commotion  and  strife." — 
"  Dangerous  Defects  in  the  Electoral  System,"  J.  G.  Carlisle,  24  Forum^ 
265. 

'  Professor  Burgess,  who  defends  and  commends  it,  except  for  what  he 

deems  its  undue  surrender  of  power  to  the  States,  admits  its  clumsiness  and 

points  out  some  defects. 
16 


242  The  Electoral  System 

ened  the  perpetuation  of  the  Government;  the  interval 
that  elapses  between  the  popular  vote  and  the  meeting 
of  the  electoral  colleges  (by  the  Act  of  1887  extended 
from  one  month  to  two)  gives  opportunity  for  all  sorts  of 
political  intrigues  and  tempts  us  into  the  very  dangers 
against  which  the  inventors  of  the  electoral  system  aimed 
to  protect  us;  and  the  statute  which  is  the  outcome  of 
one  hundred  years  of  electoral  experience  is  not  only 
usurpation  by  Congress,  but  is  cumbrous  and  perplexing 
in  the  extreme.  And  when  traps  and  pitfalls  beneath 
the  question  of  the  ineligibility  of  electors  are  considered, 
the  inquiry  is  pertinent.  Why  should  such  obsolete  and 
defective  machinery  be  kept  in  existence  to  imperil  the 
future  safety  of  the  nation? 

Sections  5  and  6  are  as  follows: 

*'  Sec.  5.  That  while  the  two  Houses  shall  be  in  meeting  as 
provided  in  this  act  the  president  of  the  Senate  shall  have 
power  to  preserve  order;  and  no  debate  shall  be  allowed  and 
no  question  shall  be  put  by  the  presiding  officer  except  to 
either  House  on  a  motion  to  withdraw. 

**  Sec.  6.  That  when  the  two  Houses  separate  to  decide 
upon  an  objection  that  may  have  been  made  to  the  counting 
of  any  electoral  vote  or  votes  from  any  State,  or  other  question 
arising  in  the  matter,  each  Senator  and  Representative  may 
speak  to  such  objection  or  question  five  minutes,  and  not  more 
than  once;  but  after  such  debate  shall  have  lasted  two  hours 
it  shall  be  the  duty  of  the  presiding  officer  of  each  House  to 
put  the  main  question  without  further  debate." 

The  purpose  of  Sections  5  and  6  is  to  facilitate  the 
disposition  of  all  contests,  so  that  the  result  shall  surely 
be  declared  in  time  to  enable  the  new  chief  magistrate  to 
be  installed  on  the  succeeding  March  4th,  but  it  is  easy 
to  imagine  a  controversy  of  such  gravity  and  extent  that 
it  could  not  be  justly  or  equitably  settled  between  the 
second  Wednesday  of  February  and  the  4th  of  March. 


The  Act  of  February  3,  1887         243 

The  Electoral  Commission  law  of  1877  recognized  this 
possibility,  and  therefore  required  the  joint  session  for  the 
counting  of  the  electoral  vote  to  commence  on  January 
31st  of  that  year.  The  leaders  of  that  epoch  were  pa- 
triots, and  both  parties  combined  to  press  for  a  speedy 
decision,  yet  the  commission  remained  in  almost  con- 
tinuous session  up  to  March  2d,  and  the  commission  was 
a  small  body  of  expert  lawyers  and  judges,  with  resulting 
advantage  for  the  expedition  of  business.  Patriots  may 
not  always  guide  party  deliberations,  and  the  spirit  of 
filibustering  could  readily  bring  about  a  perilous  crisis  in 
the  State  if  it  should  have  no  executive  head.  While 
under  the  joint  rule  debate  was  not  permissible,  discus- 
sion or  remarks  in  the  separate  chambers  often  consumed 
hours.  On  the  other  hand,  the  lack  of  power  to  debate 
has,  again  and  again,  been  deplored  and  has  several  times 
led  to  the  unjust  disfranchisement  of  a  whole  State. 

There  is  no  attempt  in  the  statute  to  determine  the 
effect  of  the  election  of  an  ineligible  elector.'  Our  exam- 
ination of  the  proceedings  before  the  Electoral  Commis- 
sion showed  a  divergence  of  views  as  to  the  effect  of  a 
vote  by  the  people  for  an  elector  prohibited  by  the  Con- 
stitution from  appointment.  One  claim  was  that  the  vote 
for  an  elector  who  at  the  time  of  his  election  held  an  office 
of  trust  or  profit  under  the  Constitution  of  the  United 
States  was  null  and  void.     It  was  argued  by  the  Demo- 

^  ' '  The  law  purports  to  be  mandatory  only  so  far  as  it  relates  to  the  pro- 
ceedings connected  with  the  certification  of  the  electoral  appointments,  and 
to  the  counting  of  the  electoral  vote.  Indeed,  even  as  to  these  matters  it 
leaves  a  wide  scope  for  disagreements,  with  their  attending  asperities  and 
dangers. 

"  But  it  is  by  no  means  certain  that  the  statute  will  be  effective  as  to  any 
of  the  matters  to  which  it  relates  ;  for  it  seems  tolerably  clear  to  the  com- 
mon understanding  that,  when  the  two  Houses  of  Congress  meet  to  open 
the  certificates  and  count  the  electoral  vote,  they  possess  all  the  powers 
conferred  upon  them  by  the  Constitution  itself,  whatever  they  are,  and  no 
others,  and  that  these  powers  can  neither  be  enlarged  nor  diminished  by  a 
law  enacted  by  the  two  Houses  themselves." — J.  G.  Carlisle,  24  Forum^  265. 


244  The  Electoral  System 

cratic  counsel  and  the  Democratic  members  of  the  com- 
mission that  the  Constitution  said  to  the  people  of  the 
State,  "You  shall  not  vote  for  this  man."  The  result, 
according  to  the  Democratic  counsel,  was  that  the  candi- 
date having  the  next  highest  number  of  votes  was  elected, 
but  that  extreme  view  was  wisely  repudiated  by  the 
Democratic  members  of  the  commission.  According  to 
them  the  effect  of  a  vote  for  an  ineligible  elector  was 
that  the  State  lost  that  vote  in  its  electoral  college. 
Morton,  and  perhaps  Justice  Miller,  entertained  the  opin- 
ion that  a  vote  for  an  ineligible  elector  made  him  a  de 
facto  if  not  also  a  de  jure  elector,  unless  the  State  pro- 
vided some  tribunal  for  passing  upon  his  ineligibility. 
Justice  Miller  in  the  Florida  case  argued  that  the  inquiry 
as  to  Humphreys'  eligibility  came  too  late  "because  Mr. 
Humphreys,  acting  under  the  credentials  which  the  law 
prescribes  as  his  authority,  has  already  cast  his  vote  for 
President  and  Vice-President.  That  vote,  being  a  fact 
accomplished,  cannot  be  annulled  by  any  subsequent 
proceeding  to  question  his  eligibilty."  Various  Repub- 
lican members  of  the  commission  regarded  the  prohibi- 
tions of  the  Constitution  as  not  self-executing.  There 
was  no  State  law  and  there  was  no  State  tribunal  to  en- 
force them.  Whether  Federal  law  could  create  a  tribunal 
to  pass  upon  the  question  was  considered  doubtful.  And 
all  the  Republican  members  of  the  commission  were  of 
the  opinion  that  an  ineligible  elector  could  resign,  and 
that  if  the  State  statute  provided  for  the  filling  of  va- 
cancies in  the  electoral  college,  his  associate  electors 
could  fill  the  vacancy.  These  notions  were  vigorously 
combatted  by  the  Democratic  commissioners,  who  agreed 
in  treating  the  constitutional  prohibition  as  self-execut- 
ing. And  they  scouted  the  idea  that  if  there  were  no 
State  machinery  to  declare  the  vote  for  an  ineligible 
elector  void  it  would  have  to  be  recognized  as  valid,  pro- 
nouncing this  doctrine  equivalent  to  conferring  upon  the 


The  Act  of  February  3,  1887         245 

State  the  alternative  of  obeying  or  disobeying  the  organic 
law  of  the  nation,  at  her  own  will.  It  is  the  author's 
opinion  that  Justice  Field  and  Senators  Bayard  and 
Thurman  had  the  better  side  of  the  argument.  Had 
Napoleon  Bonaparte  or  George  III.  or  Talleyrand  been 
elected  an  elector  by  any  State,  the  fathers  would  not 
have  long  hesitated  to  declare  the  vote  invalid  and  the 
place  never  filled,  and  they  would  have  shown  scant 
courtesy  to  de  facto  or  de  jure  claims.  If  the  prohibition 
upon  the  appointment  of  electors  is  not  self-executing, 
the  best  of  reasons  is  given  for  a  general  law  upon  the 
subject.  By  analogy,  if  the  electors  should  elect  as 
President  a  person  whom  the  Constitution  declares  to  be 
ineligible,  would  he  nevertheless  be  entitled  to  the  office, 
in  the  absence  of  legislation  carrying  the  Constitution 
into  effect?  There  is  an  imperative  need  of  some  pro- 
vision of  law  to  eliminate  all  uncertainty.  The  joint  com- 
mittee raised  by  the  two  Houses  in  1837,  in  which  such 
distinguished  statesmen  as  Henry  Clay,  Silas  Wright,  and 
Felix  Grundy  represented  the  Senate,  declared  in  its  re- 
port that  if  the  question  of  the  eligibility  of  an  elector 
should  arise,  the  important  question  demanding  imme- 
diate answer  would  be,  what  tribunal,  under  the  Consti- 
tution, would  be  competent  to  decide.  It  was  in  their 
opinion  the  duty  of  Congress  by  some  general  legislation 
to  settle  whether  the  right  to.  pass  upon  electors'  qualifi- 
cations belongs  to  the  State  or  to  the  general  Govern- 
ment. Intermediate  events  have  added  emphasis  to  the 
committee's  suggestions,  but  the  law  of  1887  is  abso- 
lutely silent  upon  the  point.  Another  question  needing 
legislative  solution  is,  in  what  manner  and  under  what 
circumstances  the  certificate  of  a  governor  in  support  of 
an  electoral  list  may  be  attacked.  The  electoral  tribunal 
of  1877  decided  such  a  certificate  to  be  impeachable,  and 
the  commission  actually  went  behind  and  ignored  it  in  the 
Oregon   case.       Merrick  admitted    in    argument    before 


246  The  Electoral  System 

the  commission  that  the  certificate  was  not  conclusive, 
but  insisted  that  it  could  be  set  aside  only  by  some  com- 
petent tribunal  established  by  law.  The  Act  of  1887, 
which  seems  to  invest  a  governor's  certificate  with  new 
dignity,  offers  no  suggestion  as  to  how  it  may  be  im- 
peached. If  the  two  Houses  in  joint  session  are  to  pass 
upon  the  eligibility  of  an  elector  or  the  validity  of  a  gov- 
ernor's certificate,  or  are  to  ascertain  what  is  the  actual 
determination  of  a  State  canvassing  authority  upon  the 
popular  vote  for  electors,  it  would  seem  impossible  that 
justice  could  be  done,  in  the  short  time  at  command, 
since  debate  is  not  permitted  either  in  the  joint  conven- 
tion or  the  separate  sessions  of  the  Houses. 

The  doubtful  constitutionality  of  the  Electoral  Com- 
mission law  has  been  generally  recognized,  but  the  enact- 
ment of  1887  goes  far  beyond  that  temporary  expedient. 
That  law  upon  its  face  acknowledged  that  Congress 
might  not  have  any  constitutional  authority  to  count  the 
electoral  vote.  The  present  law  admits  no  such  doubt, 
yet  the  Constitution  has  not  been  altered.  The  legality 
of  the  enactment  was  questioned  by  some  of  the  ablest 
constitutional  lawyers  in  the  Senate  and  the  House. 
Those  members  were  right  who  protested  against  any 
such  legislation,  who  declared  the  only  sound  remedy  lay 
in  an  amendment  to  the  Constitution.  The  act  is  a  quag- 
mire, but  the  common  sense  and  patriotism  of  the  nation 
should  see  to  it  that  there  shall  never  be  a  chance  to 
flounder  in  the  bog.  An  amendment  would  forestall  all 
danger. 

Nor  does  the  Act  of  1887  offer  any  solution  of  the 
vexatious  question  that  provoked  the  turbulent  discussion 
over  the  electoral  count  of  1857, — as  to  whether,  if  the 
electors  of  the  State  were  through  act  of  God  prevented 
from  voting  on  the  prescribed  day,  their  vote  should  be 
received  or  rejected.  Judah  P.  Benjamin,  whose  rank 
and  abilities  as  a  constitutional  lawyer  will  be  readily 


The  Act  of  February  3,  1887         247 

acknowledged,  declared  in  the  Senate  that  there  ought 
to  be  a  law  directing  that  whenever  the  vote  of  a  State 
presented  for  count  should  appear  to  have  been  given  on 
a  day  different  from  that  provided  by  law,  it  should  be 
the  duty  of  the  president  of  the  Senate  not  to  count  that 
vote.  Other  Senators  urged  that  the  provision  of  the 
Constitution  was  directory  and  not  mandatory,  that  an 
act  of  Congress  and  not  the  Constitution  fixed  the  day, 
that  form  should  yield  to  substance,  and  that  the  Consti- 
tution never  intended  that  an  inevitable  accident  should 
result  in  the  disfranchisement  of  a  whole  commonwealth. 
Garland,  in  1882,  admitted  that  whether  the  Constitution 
was  mandatory  or  not  "was  a  most  perplexing  question." 
Had  the  electoral  vote  of  some  State  in  the  plight  of 
Wisconsin  in  1857  been  essential  in  1877  to  the  success 
of  either  party,  the  dusty  records  of  Congress  would  have 
been  thoroughly  studied  for  argument  to  show  how  un- 
just such  disfranchisement  would  be,  and  opinions  in 
support  of  that  view  could  have  been  readily  found. 

It  is  questionable  whether  Section  4  of  the  Act  of 
1887  is  any  improvement  upon  the  corresponding  pro- 
vision of  the  Morton  bill  of  1873,  and  it  has  been  shown 
how  consistently  that  measure  was  criticised.  The  pres- 
ent act,  in  its  provision  that  that  set  of  returns  shall 
be  counted  which  the  two  Houses  agree  concurrently  to 
count,  is  no  better  than  the  provision  of  the  Morton  bill. 
There  is  as  pronounced  a  negative  upon  the  vote  of  the 
State  in  certain  cases  under  the  Act  of  1887,  as  there  was 
under  the  infamous  twentj^-second  joint  rule.  The  vote 
of  the  State  may  quite  as  effectively  be  sacrificed  by  a 
failure  of  the  two  Houses  to  concur  as  by  its  rejection 
by  one  House.  The  test  of  the  act  will  come  when  the 
two  Houses  are  in  antagonism.  If  they  should  disagree, 
there  would  be  no  ultimate  arbiter.  The  Act  of  1877 
compelled  their  agreement,  but  the  law  of  1887  allows 
them  to  drift  far  apart.     The  4th  of  March  may  come 


248  The  Electoral  System 

and  the  title  to  the  presidency  and  the  vice-presidency 
remain  in  doubt  because  of  a  deadlock  between  the  two 
Houses. 

Were  the  statesmen  of  1887  wiser  than  their  compeers 
of  1876?  Was  it  any  more  possible  in  the  later  year  than 
in  the  earlier  to  confide  the  fate  of  a  State's  electoral 
vote  to  the  two  Houses  in  joint  meeting?  The  laws  of 
mathematics  had  not  changed  in  the  interval,  and  these 
clearly  demonstrate  that  if  the  two  Houses  should  not  be 
in  accord,  but  their  concurrence  be  essential  to  the  count 
of  a  vote  of  a  State,  that  vote  would  be  discredited  and 
fail  of  acceptance.  Nothing  but  the  experience  of  Con- 
gress with  the  electoral  vote  of  Louisiana  in  1873  and 
the  powerful  leadership  of  Morton  impelled  the  Senate, 
in  1876,  by  a  meagre  majority,  to  accept  a  bill  which  was 
conceded  to  be  imperfect,  and  even  this  temporary  ap- 
proval was  promptly  withdrawn  by  a  vote  for  reconsider- 
ation. Nothing  but  the  experience  of  1877  compelled 
Congress,  against  the  judgment  of  its  ablest  members,  to 
enact  the  law  of  1887.  The  intervening  discussion  but 
emphasizes  the  conviction  that  the  problem  is  insoluble, 
and  that  any  legislation  clothing  the  two  Houses  jointly 
with  the  power  to  count  is  of  doubtful  constitutionality 
and  of  more  than  doubtful  expediency.  Hoar  himself 
admitted  the  deficiencies  of  the  act : 

"  A  perfect  bill,  as  I  believe,  would  provide  for  a  common 
arbiter  between  these  two  bodies  to  which  the  Constitution 
has  left  the  law-making  power,  and  that  has  been  the  attempt 
of  the  statesmanship  that  has  dealt  with  this  subject  from  the 
begmning  of  the  century  to  the  present  day;  but  every  such 
attempt  has  failed.  There  never  has  assembled  at  the  seat  of 
government,  since  the  government  went  into  operation,  a 
Congress  whose  two  Houses  would  agree  as  to  the  person  who 
should  be  the  suitable  common  arbiter  between  these  two 
bodies.  John  Marshall  tried  it  and  failed  in  1800;  Daniel 
Webster  tried  it  and  failed  in  1824;  the  men  of  1876  tried  it 


The  Act  of  February  3,  1887         249 

and  failed,  except  for  the  single  occasion  with  which  the  Elec- 
toral Commission  bill  dealt." 

No  more  powerful  plea  against  trusting  to  a  measure 
vulnerable  in  its  vital  parts  was  made  by  the  bill's  op- 
ponents. What  Dawes  said  in  1876,  when  he  reluctantly- 
lent  his  support  to  the  Morton  bill,  reveals  the  temper  of 
many  who  voted  for  the  Act  of  1887: 

**  The  Senator  has  pressed  upon  me  the  question,  What  shall 
we  do  ?  I  say,  meet  it  fairly  and  squarely;  bring  forward 
some  measure  for  an  amendment  of  the  Constitution  upon  a 
subject  which  the  framers  of  the  Constitution  did  not  think 
there  was  any  necessity  for  amending,  but  which  subsequent 
experience  has  shown  is  vital  and  essential.  But  while  such 
an  amendment  is  pending,  and  until  it  becomes  a  part  of  the 
organic  law,  I  shall  vote  for  this  bill.** 

Had  a  tithe  of  the  intellectual  force  spent  in  efforts  to 
frame  legislation  in  defiance  of  the  laws  of  mathematics 
been  devoted  to  the  preparation  of  an  amendment  to  the 
Constitution,  that  beneficent  end  would  long  ago  have 
been  attained.* 

^  The  debates  in  1800  and  in  1874,  1875,  and  1876  require  to  be  studied 
in  connection  with  the  electoral  count  law  of  February  3,  1887.  "  It  is  a 
very  dangerous  practice,"  said  Pinckney  in  the  Senate  of  1800,  "  to  en- 
deavor to  amend  the  Constitution  by  making  laws  for  the  purpose."  This 
pithy  criticism  may  well  be  applied  to  the  Act  of  1887. 


CHAPTER   X 

THE   ELECTORAL  SYSTEM   SHOULD   BE    ABOLISHED— DE- 
FECTS IN  THE  PROVISIONS  OF  THE  CONSTITUTION 
REGARDING  THE  PRESIDENTIAL  SUCCESSION 

At^HIS  brief  review  of  the  history  of  the  electoral  system 
1  would  fail  of  its  purpose  if  it  should  not  reveal  how 
far  the  system  as  at  present  operated  diverges  from  the 
theory  of  the  convention  of  1787.  The  electors  were 
originally  designed  to  be  the  agents  of  a  State,  armed 
with  plenary  authority  to  cast  its  vote  for  President  and 
Vice-President  in  such  manner  as  the  agents  themselves 
or  a  majority  of  them  might  will,  all  danger  of  abuse  of 
the  trust  being  intended  to  be  averted  by  the  selection 
of  worthy  and  fitting  instruments  for  the  execution  of 
this  high  office.'  The  chief  magistrate  of  the  nation, 
according  to  the  unsophisticated  notions  of  our  fathers, 
was  to  be  the  nominee  of  these  electors.  In  the  evolu- 
tion of  history,  without  a  syllable  of  alteration  in  the 
text  of  the  organic  law,  the  nature  of  the  agency  of  the 
electors  has  been  revolutionized  ;  it  has  become  a  special- 
ized agency  never  imagined  by  the  framers  of  the  Consti- 
tution.^ Electors  are  now  the  mere  instruments  of  party, 
"party  puppets,"  as  Justice  Bradley  termed  them,  to  per- 
form a  function  which  an  automaton  without  intelligence 
or  volition  might  as  fittingly  discharge.     Ingalls  hardly 

'As  far  back  as  1823,  Benton  characterized  the  elector  as  "nothing  but 
an  agent,  tied  down  to  the  execution  of  a  precise  trust.  Every  reason 
which  induced  the  convention  to  constitute  electors  has  failed.  They  are 
no  longer  of  any  use,  and  may  be  dangerous  to  the  liberties  of  the  people." 

250 


Defects  251 

detracted  from  the  dignity  of  their  supposed  office  when 
he  likened  them  to  ''the  marionettes  in  a  Punch  and 
Judy  show."  The  source  from  which  the  theory  of  the 
electoral  system  drew  its  inspiration  is  obscure ;  it  is  not 
based  upon  any  analogies  in  antecedent  State  experience, 
unless,  perhaps,  that  of  Maryland,  which  elected  electors 
to  choose  the  members  of  the  State  Senate.  History 
has  instructive  but  warning  examples  in  the  electors  of 
the  old  German  Empire,  and  of  Poland,  and  to  its  elective 
principle  historians  have  ascribed  the  downfall  of  that 
unhappy  state.  "The  idea  of  intermediate  electoral 
bodies,"  said  Morton,  in  1873,  was,  when  the  Consti- 
tution was  formed,  "  working  in  the  minds  of  the 
doctrinaires  and  revolutionists  of  France,  and  received 
its  full  development  in  the  celebrated  project  of  Abb^ 
Siey^s,  which  was  adopted  and  had  short  life."  An 
electoral  body,  as  Mr.  Bryce  well  says  in  his  Holy  Romaji 
Empire,  is  "a  contrivance  which  has  always  had  and  will 
probably  always  continue  to  have  seductions  for  a  certain 
class  of  political  theorists,"  but  the  distinguished  men 
who  sat  in  the  convention  at  Philadelphia  in  1787  were 
neither  visionaries  nor  doctri?iaires,  but  practical  states- 
men with  clearly  defined  ideas  regarding  the  necessity  of 
a  sharp  division  of  legislative,  executive,  and  judicial 
functions  and  the  wisdom  of  adhering  closely  to  the  po- 
litical experience  of  the  States.  Professor  Alexander 
Johnston  has  conclusively  shown  '  that  the  growth  of 
the  Constitution  was  institutional;  that,  with  the  single 
exception  of  the  electoral  features,  all  its  provisions,  if 
not  precisely  transcripts  of  the  older  State  constitutions, 
are  derivatives  from  them,  and  he  said  further: 

"  Not  creative  genius,  but  wise  and  discreet  selection,  was 
the  proper  work  of  the  convention;  and  its  success  was  due  to 
its  clear  perception  of  the  antecedent  failures  and  successes, 

^  New  Princeton  Review,  September,  1887. 


252  The  Electoral  System 

and  to  th^  self-restraint  of  its  members.  .  .  .  Was  there 
then  no  effort  of  creative  genius  on  the  part  of  the  convention, 
not  immediately  suggested  by  State  experience,  and  not  im- 
peratively called  for  by  the  circumstances  of  its  work?  The 
electoral  system  is  almost  the  only  feature  of  the  Constitution 
which  was  purely  artificial,  not  a  natural  growth;  it  was  the 
one  which  met  least  criticism  from  the  contemporary  opponents 
of  the  Constitution,  and  most  unreserved  praise  from  the 
y         Federalist;  and  Democracy  has  ridden  right  over  it." 


Whatever  the  origin  of  the  electoral  plan,  its  failure  in 
I  purpose  is  clear.  The  idea  of  the  elector  as_an  over-lord 
1  is  not  consonant  with3emocratic  institutions,  and  our 
institutions  while  not  democratic  at  the  outset  have  be- 
come increasingly  so.  Nominally  free  in  Washington's 
day,  the  electors  never  dreamed  of  resisting  the  sentiment 
that  universally  acclaimed  the  father  of  his  country  the 
first  President  of  the  new  Union.  In  Adams'  time  there 
were  one  or  two  electors  who  asserted  their  constitutional 
prerogatives,  but  the  majority  obeyed  the  desires  of  party 
leadersJand  since  that  period  the  search  is  vain  for  the 
theoretical  elector  of  the  Constitution.  Party  spirit  has 
deposed  him  and  made  him  its  tool.  That  elector  would 
render  himself  infamous  who,  accepting  the  office  upon 
the  only  possible  conditions  upon  which  it  would  be  con- 
ferred,— which  tacitly  bind  him  to  obey  his  party's  be- 
hests,— should  employ  it  to  defeat  the  will  of  those  who 
placed  him  in  it.  An  accomplished  jurist  and  author, 
and  a  student  under  Joseph  Story,*  writing  in  the  North 
American  Review  for  January,  1877,  made  the  follow- 
ing striking  reflections  upon  the  remarkably  scrupulous 
fidelity  to  a  merely  tacit  obligation  always  evinced  by 
the  electoral  colleges : 

"  For  seventy-six  years,   that  is,  for  nineteen  presidential 
elections,  no  member  of  an  electoral  college  has  failed  to  vote 

1  Richard  H.  Dana,  Jr. 


Defects  253 

for  the  candidate  designated  by  his  party,  or  been  subjected  to 
the  imputation  of  being  open  to  any  influences  in  that  direc- 
tionn  Yet  the  party  takes  from  the  elector  no  written  pledge, 
and  indeed  exacts  no  oral  pledge. /From  the  fact  that  he  is 
nominated  by  his  partyas_a„-p*€sidential  elector,  the  party 
having  first  designated  whom  iUyishes  to  have  made  President, 
he  comes  under  the  implied  obligation  to  vote  for  that  candi- 
date, and  to-di^gard  the  obligation  the  Constitution  intends 
to  put  upon  him  ot  selecting  and  voting  for  a  President  ac- 
cordmj^tohis'own  luQgmentTl^The  number  of  electors  who 
duTTfig  thiTperiod  have  so  l^t  faith  with  their  parties  must 
have  been  between  three  and  four  thousand." 

Nevertheless  there  is  the  ever  present  possibility  of  a 
breachof  trust.  Treason  may  seem  a  remote  contin- 
'gericyTyet  in  a  time  of  great  temptation  there  might 
come  an  electoral  Benedict  Arnold.'  It  is  in  the  face  of 
all  logic  and  experience  to  infer  that,  because  no  traitor 
has  yet  been  discovered,  a  temptation  of  such  peculiar 
subtlety  will  forever  remain  without  a  victim.  The  pos- 
sible methods  of  disloyalty  are  so  occult  that  it  cannot 
always  be  known  whether  an  elector  has  kept  faith.  In 
States  where  several  electors  representing  different  parties 
have  been  appointed,  an  elector  or  a  number  of  electors 
might  resign,  and  thus  give  to  the  remaining  members  of 
the  college  the  opportunity  to  fill  the  vacancies  with  their 
political  friends;  or  a  fraud  might  be  perpetrated  that 
would  seem  a  mistake,  by  a  failure  to  make  a  proper  cer- 
tificate or  to  obtain  the  prescribed  authentication;  or  the 
transmission  of  the  return  required  by  the  Constitution 
might  in  some  manner  be  thwarted. 
[  The  elector  in  the  constitutional  sense  is  an  abortive 

*  "  And  the  elector  is  not  only  permitted  but  directed  to  vote  by  ballot. 
This  is  an  anti-democratic  provision  which  may  cause  a  blunder,  and  could 
be  easily  used  to  cover  a  crime.  An  agent  of  the  people  should  never  be 
permitted  to  act  secretly  in  transacting  their  business,  except  in  cases  where 
the  public  safety  may  require." — William  Purcell,  140  JV.  A.  R.,  112. 


,/ 


2  54  The  Electoral  System  | 

organism.  He  has  no  function  to  fulfil.  But  he  is  not 
merely  functionless,  he  is  dangerous,  j  It  is  as  true  in  the 
moral  as  it  is  in  the  material  reairrT  that  any  mechanism 
or  organ  that  has  ceased  to  perform  its  function  is  sure 
to  work  mischief,  if  not  positive  detriment.  The  famous 
phrase  of  the  Constitution  "the  votes  shall  then  be 
counted"  has  been  like  an  apple  of  discord  almost  since 
the  beginning  of  the  Government.  The  authors  of  the 
Constitution  probably  intended  the  president  of  the 
Senate  to  do  the  counting,  for  in  their  eyes  it  was  to  be 
a  simple  computation  or  enumeration.  As  the  fathers 
erred  in  failing  to  gauge  the  strength  of  the  nascent 
democratic  impulse,  or  in  supposing  that  democracy 
would  consent  to  renounce  its  prerogative  of  choosing  a 
President,  so  they  were  equally  mistaken  in  their  as- 
sumption that  counting  would  always  remain  a  purely 
arithmetical  process.  It  derogates  little  from  their  just 
claims  to  reverence  to  declare  this  portion  of  the  noble 
edifice  of  the  Constitution  incongruous  with  the  rest  of 
the  structure. 

The  practical  inquiry  so  often  made  by  our  wisest  states- 
men is  constantly  reiterated — Why  continue  a  system 
that  has  missed  its  functions;  why  retain  in  our  constitu- 
tional machinery  a  piece  of  mechanism  shown  to  be  both 
dangerous  and  useless?  After  a  century  of  discussion, 
after  a  crisis  that  had  repeatedly  been  prophesied  and  that 
threatened  the  Government  when  it  came.  Congress 
finally  passed  the  Act  of  1887.  That  enactment  was 
earnestly  and  honestly  opposed  as  violative  of  the  Con- 
stitution, because  it  vests  Congress  with  a  power  never 
intended  to  be  conferred  upon  it.  The  act  was  also 
criticised  as  giving  Congress  sovereign  authority  to  dis- 
franchise a  State.  It  is  an  awkward  piece  of  machinery 
which  has  never  yet  been  put  to  genuine  test.  Similar 
criticisms  were  made  upon  the  Morton  bill,  and  both 
Morton  and  the  sponsors  of  the  Act  of  1887  were  forced 


Defects 


to  admit  that  their  devices  for  counting  the  electoral  vote 
created  no  final  arbiter  for  an  occasion  when  the  two 
Houses  should  fail  to  agree.  The  fathers  of  the  Consti- 
tution were  convinced  of  the  importance  of  separating 
the  executive  from  the  legislative  power.  They  would 
never  have  placed  the  executive  under  the  subjugation 
of  Congress,  for  nothing  is  more  clearly  shown  by  the  de- 
bates of  the  convention  than  its  unconquerable  reluctance 
to  give  the  choice  of  the  executive  to  the  national  legis- 
lature. One  central  truth  illuminates  the  wearisome, 
almost  interminable  discussions  before  the  Electoral 
Commission  of  1877,  that  the  great  effort  of  the  framers 
of  the  Constitution  was  "to  make  the  executive  inde- 
pendent of  the  legislative  and  to  place  the  election  of 
the  President  beyond  the  reach  or  control  of  Congress." 
The  act  of  1887  is  diametrically  opposed  to  this  theory, 
in  giving  Congress  a  veto  upon  the  action  of  the  States 
not  only  in  the  case  of  double  returns  but  even,  at  times, 
in  the  case  of  a  single  return.  The  law  of  1887  exalts 
Congress  over  the  executive  department,  and  gives  it  the 
power,  by  throwing  out  the  votes  of  a  State,  to  elect  a 
President  at  its  will.  Nor  did  the  creators  of  a  bicameral 
Congress  mean  to  introduce  any  such  uncertainty  into 
counting  the  electoral  vote  as  would  result  from  clothing 
one  House  with  a  veto  upon  the  other.  Counting,  in  its 
nature,  is  an  affirmative  process,  and  a  count  that  is  to 
be  made  by  two  independent  Houses  of  Congress,  where 
one  may  nullify  the  action  of  the  other,  is  both  illogical 
and  illusory.  We  cannot  dismiss  such  criticisms  as  chi- 
merical because  the  nation  was  fortunate  in  meeting  the 
difficulty  of  1877.  History  furnishes  no  warrant  for  such 
optimism.  The  constitutionality  of  the  present  act  might 
be  directly  assailed  in  a  future  contest,  and  there  has 
hitherto  been  no  decision  upon  it  by  the  Federal  courts. 
The  details  of  the  act  are  as  vulnerable  as  the  principle 
upon  which  it  is  based.     Nor  does  the  law  provide  a 


256  The  Electoral  System 

tribunal  to  pass  upon  the  qualifications  of  electors  claimed 
to  be  ineligible.  This  is  not  a  matter  for  determination 
by  a  particular  State.  The  Federal  Constitution  creates 
the  prohibition  and  Federal  authority  should  enforce  it, 
where  the  State  is  recreant.  The  appointment  by  a  State 
of  electors  whom  the  Federal  Constitution  inhibits  her 
from  appointing  is  not  the  concern  of  that  State  alone. 
That  the  general  Government  had  at  least  concurrent 
jurisdiction  over  the  subject  was  suggested  by  Clay, 
Wright,  and  Grundy,  in  1837.  Other  States  are  vitally 
interested  in  a  State's  obedience  to  the  nation's  funda- 
mental law.  The  State  has  absolute  and  exclusive  con- 
trol over  the  selection  and  appointment  of  these  agents 
of  hers,  subject  to  the  one  essential  condition  that  in 
their  appointment  she  has  not  disobeyed  the  Constitution 
of  the  United  States,  which,  in  the  plainest  and  most  un- 
qualified terms,  says  to  each  commonwealth:  "You  may 
appoint  your  electors  in  whatsoever  manner  your  respec- 
tive Legislatures  may  direct,  and  when  you  notify  the 
Government  of  their  appointment,  its  only  duty  is  to  see 
that  they  present  the  proper  credentials  prescribed  by 
your  laws  and  by  act  of  Congress ;  but  there  are  certain 
classes  of  Federal  officials  that  you  shall  not  appoint,  or 
your  appointment  will  be  a  nullity."  As  the  provision 
of  the  nation's  organic  law  is  explicit,  the  United  States 
Government  has  no  more  right  to  renounce  jurisdiction 
over  matters  within  ultimate  Federal  control  than  it  has 
to  invade  the  jurisdiction  of  the  State  and  inquire  into 
the  method  and  the  fact  of  the  appointment  of  lawful 
electors.  Hence  some  tribunal  should  be  provided  by 
Congress  to  decide  whether  the  State  has  obeyed  the 
mandate  of  the  Constitution,  or  the  constitutional  prohi- 
bition should  be  rescinded.  Obviously  the  Federal  power 
could  not  act  until  the  matter  comes  within  its  jurisdic- 
tion,— until  the  last  scene  in  the  State  drama  is  closed, 
and  the  lists,  transmitted  to  the  president  of  the  Senate, 


Defects  257 

are  opened  in  the  joint  meeting  of  the  two  Houses.  The 
power  of  the  United  States  to  determine  whether  the 
State  has  disobeyed  the  paramount  law  has  been  doubted 
by  distinguished  judges  and  advocates,  and  affirmed  by 
jurists  of  equal  reputation  ;  but  unless  the  central  author- 
ity is  to  abdicate  a  right,  plainly  its  own,  to  ascertain 
whether  its  own  fiat  has  been  disobeyed,  some  tribunal 
should  be  created  by  Congress.  But  all  doubt,  all  diffi- 
culty, all  need  for  any  tribunal  whatsoever,  would  vanish 
with  the  abolition  of  the  electoral  system. 

Stanley  Matthews,  when  before  the  Electoral  Commis- 
sion, recalled  the  quaint  saying  of  Selden  (in  an  essay  on 
papal  councils  and  their  enlightenment  by  the  spirit  that 
dwelt  in  the  Holy  Ghost) — that  he  had  generally  found 
that  the  spirit  dwelt  in  the  odd  man.  The  Electoral 
Commission  was  eulogized  by  the  speaker  as  a  tribunal 
that  "could  not  be  equally  divided."  But  Congress,  in 
the  present  electoral  count  law,  has  cast  experience  to 
the  winds  and  has  seemed  to  imagine  that  a  court  of  twQ 
persons  (two  Houses),  a  theory  never  before  devised,' 
should  be  created  to  discharge  the  exalted  duty  of  count- 
ing the  vote  for  the  most  august  executive  officer  in  the 
nation,  if  not  in  the  world.  The  veto  which  one  House 
would  have  upon  the  other  would  put  the  Government 
to  death  and  usher  in  the  reign  of  chaos,  if  party  passion 
should  ever  have  sufficiently  violent  sway.  It  is  futile 
to  dream  that  some  arbiter  may  be  found,  and  the  law 
amended  to  realize  the  ideals  of  its  framers.  Every  sug- 
gestion imaginable  was  made  in  the  debate  of  1876,  but 
none  proved  acceptable.  Of  all  schemes,  the  most  per- 
nicious would  be  to  clothe  the  Supreme  Court  or  any  of 

^  I  say  '*  never  before  devised,"  because  the  Electoral  Commission  law, 
while  it  nominally  conferred  the  power  in  a  special  instance  upon  the  two 
Houses,  so  prearranged  the  decision  as  to  prevent  a  difference  between  the 
two  Houses  upon  the  report  of  the  commission  from  having  any  effect 
whatever. 


258  The  Electoral  System 

its  justices  with  the  functions  of  an  ultimate  counting 
authority ;  but  the  danger  of  the  adoption  of  such  a  plan 
has  lessened  since  the  experience  of  the  country  in  1877, 
when  it  was  found  that  the  pure  ermine  of  the  bench  was 
no  shield  against  partisanship. 

In  these  circumstances,  the  dictate  of  practical  wisdom 
is  to  abolish  the  letter  of  the  system  altogether — which 
might  easily  be  done  by  a  single  amendment  to  the  Con- 
stitution. If  the  people  of  the  United  States  entertain 
to-day  the  repugnance  to  a  vote  for  President  and  Vice- 
President  by  the  people  as  a  whole  that  was  felt  by  the 
representatives  of  the  small  States  in  the  convention  of 
1787,  the  theory  of  electoral  representation  might  be 
preserved,  and  yet  the  perilous  electoral  machinery  abol- 
ished. Each  State  might  still  have  the  electoral  votes  to 
which  its  representation  in  the  United  States  Senate  and 
in  the  House  entitles  it  under  the  present  Constitution. 
The  useless  and  antiquated  mechanism  should,  however, 
be  discarded  and  the  State,  by  an  amendment  to  the 
national  Constitution,  be  declared  entitled  upon  the  au- 
thoritative canvass  of  the  popular  vote  to  its  proportional 
vote  for  President  and  Vice-President  in  a  fictitious  elec- 
toral college.  The  office  of  elector  having  disappeared, 
there  would  be  no  occasion  for  electors  to  convene  in  a 
State  capital  for  the  purpose  of  casting  the  vote  of  the 
State,  and  the  State  would  be  saved  the  attendant  ex- 
pense, and  the  possible  loss  of  its  vote  if,  for  example,  as 
happened  in  Wisconsin  in  1857,  the  electors  should  be 
prevented  by  an  accident  from  convening  on  the  day  fixed 
by  act  of  Congress.  All  contention  over  the  ineligibility 
of  electors  would  cease,  and  such  an  imbroglio  as  arose 
over  the  appointment  of  electors  in  Oregon  in  1877 
would  never  vex  the  nation  again.  We  should  not,  it  is 
true,  be  able  by  this  change  to  prevent  the  recurrence  of 
such  a  disgraceful  proceeding  as  a  fraudulent  and  iniqui- 
tous determination  of  a  State  canvassing  board,  subversive 


Defects  259 

of  the  actual  popular  vote,  but  we  should  get  rid  of  many 
perils  and  perplexities  of  the  present  system.  Or,  if  the 
people  desired  to  return  to  the  district  system  so  largely 
in  favor  at  an  earlier  epoch  of  our  history,  that  could  be 
as  readily  accomplished.  The  district  system  of  voting 
was  the  essential  change  embodied  in  the  amendments  to 
the  Constitution  unsuccessfully  proposed  at  different 
times  by  Benton,  Van  Buren,  McDufifie,  Morton,  and 
Sumner.^ 

The  Constitution  provides  that  "the  Congress  may  de- 
termine the  time  of  choosing  the  electors  and  the  day  on 
which  they  shall  give  their  votes ;  which  day  shall  be  the 
same  throughout  the  United  States."  The  difficulty 
which  befell  the  Wisconsin  electors  in  1857  has  been  more 
than  once  mentioned  in  these  pages.  Fortunately  the 
vote  of  Wisconsin  was  not  decisive  of  the  result,  as 
Buchanan's  election  was  assured  whether  the  vote  of  that 
State  was  counted  or  rejected.  The  fathers  wisely  de-^ 
termined  that  the  electoral  colleges  should  meet  on  the 
same  day,  in  order  to  forestall  intrigues  and  machina- 
tions. But  the  vote  of  a  State  might  be  prevented  by 
**act  of  God  "  on  the  appointed  day  and  that  vote  might 
be  essential  to  elect  a  candidate.  While  the  Act  of  1845 
allows  the  States  to  authorize  their  electors  to  fill  vacan- 
cies in  the  respective  electoral  colleges,  it  is  not  altogether 

'  Mr.  George  Ticknor  Curtis  some  years  ago  advocated  an  amendment 
to  the  Constitution  of  the  United  States  which  he  proposed  to  call  the  six- 
teenth article,  which  should  provide  for  the  assembling,  at  the  seat  of  gov- 
ernment, of  an  integral  body  of  electors  representing  all  the  electoral 
colleges,  and  constituting  an  electoral  chamber,  the  body  itself  to  be  the 
judge  of  the  elections,  qualifications,  and  returns  of  its  own  members. 
The  members  of  this  electoral  chamber  were  then  to  vote  for  President  and 
Vice-President  per  capita.  Obviously,  this  plan  would  obliterate  all  State 
lines  in  the  election  of  the  chief  executive.  Mr.  Curtis  was  convinced  that 
"if  any  safe  and  prudent  method  can  be  devised  which,  while  accomplish- 
ing other  benefits,  will  take  the  whole  process  of  counting  the  electoral 
votes  out  of  the  hands  of  the  two  Houses  of  Congress,  it  will  be  a  consum- 
mation most  devoutly  to  be  wished." — 29  Century  Magazine,  124. 


26o  The  Electoral  System 

■unreasonable  to  imagine  that  all  the  electors  of  a  State 
might  perish  in  a  common  disaster,  in  which  event  there 
would  be  no  survivor  or  survivors  to  elect  members  to 
the  vacant  seats  in  the  board.  By  the  irony  of  fate,  the 
electoral  system  has  itself  resulted  in  giving  endless  op- 
portunities to  the  cabals,  conspiracies,  and  intrigues 
against  which  the  convention  of  1787  fondly  supposed  it 
had  impregnably  environed  the  choice  of  President  and 
Vice-President.  The  earlier  history  of  the  country  con- 
tains instances  of  coalitions  and  bargains  tending  to  cor- 
rupt and  debauch  electors,  and  while  Clay  has  been 
vindicated  of  the  charge  that  he  brought  to  Adams' 
support  in  1825  sufficient  electoral  reinforcement  to  elect 
Adams  and  defeat  Jackson,  in  consideration  of  a  bargain 
that  he  should  have  the  portfolio  of  State,  the  stigma  of 
that  unjust  accusation  attached  to  him  for  years.  The 
very  fact  that  two  months  elapse  between  the  popular 
election  and  the  meeting  of  the  colleges  in  January,  gives 
a  chance  for  all  sorts  of  intrigues  and  furnishes  powerful 
incentives  to  corrupting  negotiations.  The  intervention 
of  electors,  so  far  from  being  a  potent  defence  against 
fraud,  has  become  one  of  the  most  efficient  agencies  for 
its  perpetration ;  and,  as  has  been  well  shown  by  Ostro- 
goski,  has  tended  to  make  the  success  of  democracy  for- 
mal rather  than  vital.  Nomination,  the  most  important 
element  in  the  choice  of  the  chief  magistrate,  is,  under 
the  iron-clad  control  of  conventions,  ruled  by  the  very 
class  of  office-holders  that  the  Constitution  intended  to 
deprive  of  all  voice  in  the  selection  of  the  President. 

Nor  is  the  catalogue  of  the  perils  that  hide  beneath 
the  constitutional  plan  exhausted  by  this  recital.  The 
House  of  Representatives  becomes  the  body  to  choose 
the  President  when  no  candidate  has  a  majority  of  the 
whole  number  of  electors  appointed.  Electors  may  be 
elected  by  the  people,  yet  never  be  appointed,  for  an 
elector  chosen  by  the  people  might  be  ineligible  under 


Defects  261 

the  nation's  organic  law,  or  he  might  die  or  resign  and  a 
question  arise  as  to  the  appointment  of  his  successor  er 
substitute.  The  subject  is  of  the  highest  importance  in 
its  bearing  upon  the  question  as  to  when  the  time  arrives 
at  which  the  House  is  constitutionally  warranted  in  enter- 
ing upon  the  choice  of  a  President.  Evarts  in  the  Senate 
in  February,  1886,  pointed  out  the  desirability  of  incor- 
porating in  the  bill  for  counting  the  electoral  vote  some 
provision  clearly  directing  how  and  when  this  question 
should  be  settled.  A  candidate  might  not  have  a  ma- 
jority of  the  votes  received  by  the  president  of  the  Senate 
or  of  all  the  electoral  colleges,  and  still  have  a  majority 
of  the  electors  appointed.  Had  Georgia's  three  votes 
for  Greeley  been  rejected,  during  a  contest  when  their 
count  had  been  essential  to  determine  whether  a  candi- 
date had  a  majority  of  the  electors  appointed,  the  parti- 
sans of  that  candidate  would  have  insisted  that  he  was 
elected,  whereas  the  friends  of  a  defeated  candidate 
might  have  as  reasonably  argued  that  no  one  had  a  ma- 
jority of  the  electors  appointed  and  that  therefore  the 
election  should  go  into  the  House  of  Representatives. 
There  is  no  authority  to  decide  between  them. 

The  Constitution  is  silent  upon  the  question  who  shall 
determine  when  the  right  of  the  House  of  Representa- 
tives to  proceed  to  an  election  may  be  said  to  mature. 
Is  the  House  to  be  the  sole  judge?  The  debates  of  Con- 
gress show  that  on  several  occasions  during  the  tumultu- 
ous session  of  1857,  ^^S^Y  and  dissatisfied  members  of 
the  House  asserted  that  the  hour  had  come  for  the  exer- 
cise of  its  prerogatives.  It  is  not  inconceivable  that,  in 
some  future  dispute  over  a  single  or  a  double  return, 
one  or  the  other  of  the  two  Houses  may  be  tied  so  that 
no  decision  shall  be  possible,  or  that  a  deadlock  between 
them  may  be  prolonged,  and  the  question  would  then  be 
presented  whether  the  House  of  Representatives  should 
not  itself  elect  the  President.     In  1876  there  were  in  the 


7 


262 


The  Electoral  System 


House  members  who  urged  that,  inasmuch  as  there  was 
no  constitutional  machinery  for  the  counting  of  the  elec- 
toral vote,  the  House  would  abdicate  its  office  if  it  should 
not  proceed  to  an  election.  As  was  said  when  the  Act 
of  1887  was  under  consideration,  the  discussions  over 
disputed  returns  might  easily  be  protracted  until  the  mid- 
night of  March  3d  and  the  House  might  be  influenced 
to  assume  the  role  of  President-maker.  There  is  a  plain 
casus  omissus  in  the  Constitution,  as  Evarts  and  Ingalls 
pointed  out  in  1887,  in  its  failure  to  prescribe  some  exact 
means  for  the  determination  of  this  question!  These 
dangers  are  not  fanciful,  for  one  has  but  to  peruse  the 
record  of  presidential  contests  to  find  these  or  like  claims 
repeatedly  made  in  the  more  popular  chamber. 

Inasmuch  as  the  Constitution  imperatively  requires  the 
House,  if  there  shall  be  no  choice  declared  in  the  joint 
session,  immediately  to  proceed  to  the  election  of  a  Presi- 
dent, the  choice  of  the  chief  executive  is  thus  intrusted 
to  a  House  of  Representatives  about  to  go  out  of  exist- 
ence ;  and  such  a  House  may  even  be  under  the  control 
of  the  party  defeated  at  the  preceding  November  election. 
The  fact  that  the  vote  in  the  House  of  Representatives 
for  President  is  not  per  capita,  but  by  States,  introduces 
an  additional  element  of  a  most  confusing  and  unsatis- 
factory nature,  for  it  results  in  giving  the  power  to  elect 

J  to  a  majority  of  States  representing  a  minority  of  the 

I  population  of  the  country. 

One  remarkable  omission  from  Article  H.  of  the  Con- 
stitution not  only  shows  that  its  frame'rs  were  not  in- 
fallible, but  also  emphasizes  the  importance  of  a  speedy 
amendment  to  remove  a  danger  that  may  at  any  time 
become  actual.  Subdivision  6  of  Section  i  of  Article  H. 
provides  as  follows  : 


**  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 


Defects  263 

duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice- 
President;  and  the  Congress  may  by  law  provide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  Presi- 
dent and  Vice-President,  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly  until  the 
disability  be  removed  or  a  President  shall  be  elected," 

The  Constitution  here  makes  provision  for  two  classes 
of  cases.  The  first  is  v^here  the  actual  chief  executive 
dies,  resigns,  or  becomes  unable  to  discharge  the  pov^^ers 
and  duties  of  his  office.  In  any  one  of  these  contin- 
gencies, the  Constitution  itself  declares  that  the  office 
held  by  the  deceased,  resigning  or  disabled  President 
shall  devolve  on  the  Vice-President.  There  is  no  pos- 
sible ambiguity  or  obscurity  in  the  clause,  except  in  the 
case  of  the  inability  of  a  President.  Death  is  a  fact 
which  speaks  for  itself.  As  to  "  resignation, "  Mr.  J ustice 
Story  says:  '* Congress,  with  great  wisdom  and  foresight, 
has  provided  that  it  shall  be  by  some  instrument  in  writ- 
ing, declaring  the  same,  subscribed  by  the  party,  and  de- 
livered into  the  office  of  the  Secretary  of  State."  But 
inability  is  not  easily  determinable,  and  inability  is  not 
defined  in  the  Constitution.  In  the  debate  of  1886  in 
the  Senate,  Ingalls,  commenting  upon  this  uncertainty  of 
the  fundamental  law,  declared  that  it  afforded  no  means 
for  determining  when  "inability"  had  occurred,  orbits 
nature,  extent,  duration,  and  end";  and  he  contended 
that  Garfield  was  disabled,  under  the  Constitution,  "from 
the  moment  when  he  sank  to  the  floor  of  the  railroad 
station,  penetrated  by  the  bullet  of  the  assassin,"  and 
that  from  that  moment  the  Constitution  devolved  the 
presidency  upon  Chester  A.  Arthur,  who  was  not  in- 
ducted into  the  office  or  clothed  with  its  powers  and 
duties  until  after  Garfield's  death. 

The  second  class  of  cases  consists  of  those  in  which 
there  has  been  removal,  death,  resignation,  or  inability 


264  The  Electoral  System 

both  of  the  President  and  Vice-President.  For  any  of 
these  last-named  contingencies,  Congress  is  empowered 
to  legislate, — for  the  Constitution  gives  no  specific  direc- 
tion,— and  to  declare  what  officer  shall  thereupon  act  as 
President,  but  the  Constitution  prescribes  that  "such 
officer  shall  act  accordingly,   until  the  disability  be  re- 

! moved  or  a  President  shall  be  elected."  While  Presi- 
dents and  Vice-Presidents  have  died  in  office,  it  has  never 
;Jyet  happened  that  a  President-elect  or  a  Vice-President- 
I  elect  has  died.  Nor  has  there  ever  occurred  a  resignation 
)  or  removal  of  a  President  or  Vice-President.  The  cour- 
j  age  and  patriotism  of  seven  Senators  stood  between  the 
I  country  and  the  possibility  of  a  removal  of  a  President, 
when  articles  of  impeachment  were  preferred  against 
President  Johnson,  in  1868.  Nor  has  Congress  ever  pre- 
scribed what  shall  constitute  disability.  The  presidential 
succession  law  of  1886  prescribes,  in  brief,  that  if  for  any 
reason  both  the  President  and  the  Vice-President  are  un- 
able to  serve,  a  member  of  the  Cabinet  in  the  following 
order  shall  act  as  President  until  the  disability  of  the 
President  or  Vice-President  shall  be  removed  or  a  new 
President  be  elected:  the  Secretary  of  State,  Secretary 
of  the  Treasury,  Secretary  of  War,  Attorney-General, 
Postmaster-General,  Secretary  of  the  Navy,  and  Secre- 
tary of  the  Interior.  In  the  judgment  of  some  eminent 
constitutional  lawyers,  the  Constitution  has  ordained  a 
** periodicity,"  as  Evarts  termed  it,  in  the  election  of  the 
President  and  Vice-President ;  and  it  seems  to  have  been 
assumed  in  discussion  in  Congress  that  under  the  law  of 
1886,  if  the  President-  and  Vice-President-elect  should 
die,  the  Secretary  of  State  of  the  outgoing  administration 
would  hold  the  office  of  President  for  the  next  four  years. 
But  this  view  has  not  met  with  universal  sanction,  and 
will  not  stand  analysis.  Here  the  Constitution  is  defec- 
tive and  nothing  short  of  an  amendment  will  remedy  the 
defect.     Let  us  consider  the  two  cases :  the  death  of  the 


Defects  265 

President-elect,  and  the  death  of  both  President-elect  and 
Vice-President-elect. 

This  constitutional  provision  above  quoted  does  not, 
in  strictness,  apply  to  the  case  of  the  death,  resignation,  J 

or  disability  of  a  President-elect,  or  Vice-President-elect,  t/ 

and  the  question  is  of  transcendent  significance — ^Whatl /?>^/Q> 
would  happen  if  the  President-elect  were  to  die  beforel^ 
his  inauguration?     This  inquiry  involves  several  distinctly 
queries.     In  the  first  place,  if  the  candidate  for  the  chief] 
magistracy  of  the  nation  should  die  before  the  assemb-/ 
ling  of  the  electoral  colleges  in  January,  how  should  theyl 
vote?     Strictly  speaking,  under  the  letter  of  the  Consti-' 
tution,  the  electors  would  have  absolute  control  of  the 
selection.^      Should   they    choose    the   vice-presidentiali 
candidate,  or  cast  their  suffrages  for  some  other  party \ 
leader?     Under  the   existing   system,  which   treats  the  | 
elector  as  a  party  puppet,  the  determination  of  this  ques- 
tion might  naturally  fall  to  the  party's  convention  or  i 
national  committee.     The  case  is  not  purely  imaginary,  ' 
for  Greeley,  the  candidate  of  the  Democratic  party  for 
the  presidency  in  1872,  died  before  the  colleges  met  to 
vote,  and,  while  the  electors  chosen  in  some  of  the  States 
to  vote  for  him  scattered  their  votes  as  they  pleased 
among  other  candidates,  votes  were  actually  cast  for  him 
in   the  Georgia  college.     The  Senate  decided  that  the 
votes  for  Greeley  should  be  counted  notwithstanding  his 
death,  but  the  House  voted  that  they  should  not  be, 
"the  said  Horace  Greeley  having  died  before  the  votes 
were  cast,"  and,  under  the  twenty-second  joint  rule,  the 
three  Greeley  votes  were  rejected,  as  the  two  Houses 
failed  to  concur.     Under  the  Act  of  1887,  such  votes 

*  "  Should  accident  so^hape  events  that  the  presidential  candidate  of  the 
victorious  party  should  die  before  the  meeting  of  the  electoral  colleges,  then 
the  United  States  would  again  have  a  President  who  was  not  only  in  form, 
but  in  truth,  elected  by  the  electors.  The  effects  that  such  an  accident 
might  produce  are  incalculable." — Von  Hoist,  Federal  Constitution,  87. 


266  The  Electoral  System 

would  have  to  be  counted,  unless  they  were  held  to  be 
votes  not  "regularly"  given,  because  for  atpredeceased 
candidate.  The  act  might  well  have  been  more  specific 
upon  this  subject.  Such  a  contingency  might  expose 
electors  to  a  dangerous  temptation.  Had  General  Grant 
died  at  the  same  time  as  Greeley,  the  strain  to  which  the 
Republican  electors  might  have  been  subjected  can  be 
readily  imagined.  The  death  of  Hayes  or  Tilden  during 
the  earnest  debate  in  the  winter  of  1876-77,  upon  the 
question  where  the  power  to  count  actually  lay,  might 
easily  have  made  even  an  incorruptible  elector  conceive 
it  to  be  his  patriotic  duty  to  break  with  the  tradition  of 
party  fealty. 

In  the  second  place,  if  the  colleges  had  voted  and  trans- 
mitted their  returns  to  the  president  of  the  Senate,  in 
compliance  with  the  Federal  law  of  1792  (now  embodied 
in  sections  1 31-135,  138,  140,  142  of  the  Revised  Statutes 
of  the  United  States),  and  the  successful  candidate  should 
thereafter  die,  but  before  the  two  Houses  met  in  joint 
session  in  February,  would  the  Houses  go  through  the 
solemn  pageant  of  appointing  tellers  and  counting  votes 
for  a  dead  man,  and  would  it  be  the  duty  of  the  president 
of  the  Senate  to  declare  the  recipient  of  the  highest  num- 
ber of  votes,  although  a  dead  man,  the  President  of  the 
\  United  States?  It  is  conceivable  that  such  a  ceremony 
!  might  be  coincident  with  the  funeral  services  of  the  man 
;  thus  pompously  announced  elected  chief  executive. 
The  business  of  opening  and  counting  the  votes  and 
declaring  the  result  could  not  be  postponed,  however  in- 
opportune its  occurrence  might  be.  Whom  should  the 
president  of  the  Senate  declare  elected?  Does  the  Con- 
stitution make  provision  upon  this  subject,  or  does  the 
section  above  set  forth  refer  only  to  the  then  existing 
incumbents  of  the  presidential  and  vice  -  presidential 
ofifice?  In  the  third  place,  the  President-elect  might  die 
between  the  second  Wednesday  of  February  and  the  4th 


Defects  267 

of  March,  when  the  same  question  would  arise  as  in  the 
case  of  his  death  between  the  second  Monday  of  January 
and  the  second  Wednesday  of  February,  the  only  differ- 
ence being  that  in  this  instance  he  would  have  been  de- 
clared President  while  still  alive.  The  electoral  colleges 
could  not  be  reconvened  in  either  instance,  because,  upon 
the  hypothesis,  they  would  have  already  met,  voted,  and 
transmitted  their  lists  to  the  seat  of  government.  The 
present  law  of  Congress  makes  no  provision  for  their  re- 
convening, nor  could  it  constitutionally  do  so.  Each 
college  would,  as  the  lawyers  say,  h^  functus  officio.  It 
would  be  a  most  elastic  interpretation  of  the  existing 
Constitution  that  would  apply  it  to  the  death  of  a  Presi- 
dent-elect. It  may  be  answered  that  the  Vice-President 
would  be  declared  elected  to  his  own  office,  and  that  on 
the  4th  of  March  he  would  be  sworn  into  that  office  and 
immediately  thereafter  be  inducted  into  the  vacant  office 
of  the  presidency ;  but  such  a  procedure  (while  it  might 
be  acquiesced  in)  would  not  be  technically  or  correctly 
within  the  purview  of  the  Constitution,  for  the  Constitu- 
tion does  not  explicitly  say  what  shall  happen  if  a  Presi- 
dent-elect die.  Suppose,  after  the  conclusion  of  the 
proceedings  of  the  Electoral  Commission  of  1877,  ^"<^ 
the  antagonistic  votes  of  the  Senate  and  the  House 
(which  under  the  law  made  the  decision  of  the  commis- 
sion binding  upon  Congress),  Mr.  Hayes  had  died,  is  it 
reasonable  to  assume  that  the  Democrats  of  the  country, 
smarting  under  a  keen  sense  of  injustice,  believing  them- 
selves out-generalled  by  the  Republicans  and  unfairly 
treated  by  the  electoral  tribunal,  would  have  tamely 
submitted  to  the  inauguration  of  Vice-President  Wheeler 
as  President  of  the  United  States?  The  fathers  were 
most  anxious  to  avert  the  possibility  of  the  occurrence 
of  an  interregnum  in  the  executive  office  at  any  time, 
and  it  may  persuasively  be  urged  that  the  course  of  pro- 
cedure  just    outlined  would  be  the   constitutional  one. 


268  The  Electoral  System 

But  the  same  catastrophe  which  removed  the  President- 
elect might  also  terminate  the  life  of  the  Vice-President- 
elect. We  have  but  to  recall  the  assassination  of  Lincoln 
and  the  attempted  assassination  of  Seward  and  other 
Cabinet  officers  to  see  how  possible  is  such  a  train  of 
calamities.  And  whether  the  deduction  be  sound  that 
the  Constitution  would  leave  the  country  without  a 
President  if  the  President-elect  should  die,  there  can  be 
no  escape  from  the  conclusion  that  the  Constitution  fails 
to  point  out  who  shall  be  the  executive  if  both  President- 
elect and  Vice-President-elect  die.  Nor  does  it  confer 
upon  Congress  the  power  to  provide  for  such  a  contin- 
gency by  legislation ;  for  it  authorizes  Congress  to  provide 
who  shall  be  President  only  when  there  shall  have  oc- 
curred the  removal,  death,  resignation,  or  inability  of  the 
actually  existing  President  and  Vice-President. 

It  may  be  argued  that,  in  the  case  of  the  death  of  the 
President-elect,  the  election  would  devolve  upon  the 
House  of  Representatives,  the  vote  to  be  taken  by  States. 
The  Constitution  prescribes  that 

**  the  president  of  the  Senate  shall  in  the  presence  of  the  Sen- 
ate and  House  of  Representatives  open  all  the  certificates  and 
the  votes  shall  then  be  counted.  The  person  having  the 
greatest  number  of  votes  for  President  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed,  and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  number,  not  exceeding  three  on  the 
list  of  those  voted  for  as  President,  the  House  of  Representa- 
tives shall  choose  immediately,  by  ballot,  the  President. '  * 

The  only  contingency  in  which,  by  the  Constitution,  the 
duty  of  election  falls  to  the  House  is  when  no  person  has 
a  majority  of  the  whole  number  of  electors  appointed. 
But  in  the  supposititious  case  under  consideration  the 
majority  of  that  number  would  have  been  given  for  a 
candidate  deceased  before  the  joint  convention  of  the 


Defects  269 

Houses  assembled,  so  that  in  strictness  the  House  of 
Representatives  could  not  constitutionally  exercise  the 
function  of  making  a  choice.  It  may  well  be  doubted 
whether  that  instrument  intended  to  confer  upon  the 
House  of  Representatives  the  duty  of  electing  a  Presi- 
dent, where  the  President-elect  died  before  the  second 
Wednesday  of  February.  Had  Mr.  Hayes  died  just  prior 
to  the  second  Wednesday  of  February,  1877,  any  claim  of 
right  on  the  part  of  the  House  of  Representatives  to  pro- 
ceed to  the  election  of  a  President  and  to  elevate  Mr. 
Tilden  to  the  presidency  would  have  been  bitterly  con- 
tested, and  no  one  can  tell  into  what  a  sea  of  troubles 
such  a  calamity  as  Mr.  Hayes'  death  at  that  juncture 
would  have  plunged  the  country.  If  the  House  should 
have  undertaken  this  office,  the  question  would  have 
arisen  whether  the  choice  should  be  confined  to  the  two 
candidates,  then  living,  having  the  highest  number  of 
votes.  From  the  tenor  of  a  colloquy  between  Hoar  and 
Ingalls,  during  the  debate  in  the  Senate  on  the  electoral 
count  bill  in  1887,  it  would  seem  that  Hoar's  opinion  was 
that  if  the  successful  candidates  for  both  the  presidency 
and  vice-presidency  at  the  November  election  should  die 
before  the  second  Monday  of  January,  the  House  of 
Representatives  would  proceed  to  exercise  its  constitu- 
tional function ;  whereas  if  both  died  between  the  second 
Wednesday  of  February  and  the  4th  of  March — which 
would  not  be  likely  to  happen,  said  Hoar,  "once  in  five 
thousand  years" — the  Secretary  of  State  of  the  existing 
administration  would  hold  over  under  the  presidential 
succession  law  until  the  end  of  the  next  four  years.  In- 
galls dissented  from  both  of  Hoar's  propositions  as  to 
what  then  would  be  the  constitutional  procedure,  and 
emphatically  contended  that  such  a  possibility  as  the 
continuance  in  office,  for  four  years,  of  the  Secretary  of 
State  of  the  old  administration,  was  never  contemplated 
when  the  succession  law  of  1886  was  before  the  Senate; 


270  The  Electoral  System 

and  he  refused  to  admit  that  the  interim  between  the 
declaration  of  the  result  in  February  and  March  4th  was 
so  short  that  such  an  evil  as  the  death  of  both  President- 
and  Vice-President-elect  might  not  happen.  * '  The  fatali- 
ties of  the  past  twenty  years  have  familiarized  the  public 
mind  with  the  dangers  that  attend  this  subject.  The 
people  of  this  country  are  no  longer  prepared  to  disregard 
death  as  a  factor  in  the  great  drama  of  political  supre- 
macy in  this  republic." 

Hoar,  in  his  autobiography,  states  his  conviction  that 
the  Constitution  is  defective  in  failing  to  prescribe  the 
mode  of  succession  in  the  case  of  the  death  of  both  the 
President-  and  the  Vice-President-elect.     He  says : 

"  That  this  is  not  an  imaginary  danger  is  shown  by  the  fact 
of  the  well-known  scheme  to  assassinate  Lincoln  on  his  way 
to  the  seat  of  the  Government,  and  also  by  the  fact  that  either 
the  President  or  the  Vice-President  has  died  in  office  so  many 
times  in  the  recollection  of  men  now  living.  President  Harri- 
son died  during  his  term;  President  Taylor  died  during  his 
term;  Vice-President  King  died  during  Pierce's  term;  Presi- 
dent Lincoln  died  during  his  second  term;  Vice-President 
Wilson  died  during  Grant's  term;  President  Garfield  died 
during  his  term;  Vice-President  Hendricks  died  during  Cleve- 
land's term;  Vice-President  Hobart  died  during  McKinley's 
term;  and  President  McKinley  during  his  own  second  term. 
So  within  sixty  years  eight  of  these  high  officials  have  died  in 
office;  five  of  them  within  thirty  years;  four  of  them  within 
twenty  years.  I  have  also  drawn  and  repeatedly  procured  the 
passage  through  the  Senate  of  an  amendment  to  the  Constitu- 
tion to  protect  the  country  against  this  danger.  That  (also) 
has  failed  of  attention  in  the  House.  I  suppose  it  is  likely 
that  nothing  will  be  done  about  the  matter  until  the  event 
shall  happen,  as  is  not  unlikely,  that  both  President  and  Vice- 
President-elect  shall  become  incapacitated  between  the  election 
and  the  time  for  entering  upon  office." 

There  is  too  easy  and  ill-founded  an  optimism  in  Hoar's 


Defects  271 

apparently  confident  opinion  that  the  death  of  the  Presi- 
Jent-elect  alone  before  the  4th  of  March  would  present 
no  serious  difficulty.'  It  is  not  at  all  clear  that  both  the 
President-  and  Vice-President-elect  must  die  between 
the  time  of  counting  the  electoral  vote  and  March  4th,  to 
create  a  most  novel,  embarrassing,  and  alarming  posture 
of  affairs.  Nevertheless,  even  if  no  difficulty  should  arise 
except  in  the  contingency  that  both  die,  its  occurrence 
would  be  fraught  with  such  danger  that  the  Constitution 
should  contain  provision  for  it.  Some  of  these  questions 
have  recently  been  considered  by  the  Committee  on 
Privileges  and  Elections  of  the  House  of  Representatives, 
in  a  report  upon  a  bill  to  amend  the  presidential  succes- 
sion law  so  as  to  provide  that  the  two  Cabinet  officers, 
the  Secretary  of  Agriculture  and  the  Secretary  of  Com- 
merce and  Labor,  whose  offices  have  been  created  since 
the  passage  of  the  act  of  1886,  shall  in  certain  contin- 
gencies respectively  succeed  to  the  presidency.  The 
report  of  the  committee  contains  the  following  interesting 
paragraphs : 

**  Your  committee  are  not  called  upon  to  express  any  opinion 
as  to  the  merits  of  the  existing  law  [Act  of  1886].  It  may  not, 
perhaps,  be  out  of  place  to  call  the  attention  of  the  House 
briefly  to  the  inadequacy  of  the  present  provisions  for   the 

*  Caldwell,  in  the  House  in  1886,  inclined  to  think  the  Constitution  inap- 
plicable to  the  case  of  a  President-elect  and  Vice-President-elect,  and  de- 
clared that  Justice  Story  and  George  Ticknor  Curtis  were  his  authorities. 
Curtis  says  :  "  But  there  is  every  reason  to  believe  that  this  provision  em- 
braces the  case  of  a  vacancy  in  both  offices  occasioned  by  removal,  death, 
resignation,  or  inability,  not  of  the  President-  and  Vice- President-elect,  but 
of  the  President  and  Vice-President  in  office.  It  may  be  doubted  whether 
the  framers  of  the  original  Constitution  intended  to  provide  for  a  vacancy 
in  both  offices  occasioned  by  the  failure  of  the  House  of  Representatives  to 
elect  a  President,  and  the  death  of  the  Vice-President-elect ;  or  a  non- 
election  of  a  Vice-President  by  the  Senate  before  the  fourth  day  of  March. 
.  .  .  It  does  not  refer  to  the  President-  and  Vice-President-elect  whose 
term  of  office  has  not  commenced." 


2  72  The  Electoral  System 

presidential  succession,  and  the  need  of  early  attention  to  that 
subject  by  the  Congress.  Who  would  determine  the  question 
of  *  inability  *  on  the  part  of  the  President,  and  when  such 
inability  ceased  ?  If  an  election  were  ordered  in  case  of  a 
vacancy  in  the  office,  could  it  be  for  the  unexpired  term,  or 
would  it  have  to  be  for  a  term  of  four  years,  thus  disarranging 
the  four-year  period  of  the  Government  ? 

"  If  a  President-elect  were  to  die  before  becoming  Presi- 
dent, would  the  Vice-President-elect  be  President  for  the 
term  ?  Again,  if  a  President-elect  and  Vice-President-elect 
should  both  die  prior  to  taking  their  offices,  would  the  Cabinet 
officers  appointed  by  the  outgoing  President  succeed  in  the 
order  named  in  the  present  law  when  the  new  term  began  ? 
Suppose  the  Democratic  candidates  for  President  and  Vice- 
President  had  been  elected  at  the  last  election  and  had  died 
before  new  Cabinet  officers  had  been  confirmed,  would  the 
Republican  Cabinet  officers  be  in  line  of  succession  ?  There 
is  no  easy  answer  to  any  of  these  questions. 

**  The  existing  law  provides  that  in  case  the  succession  shall 
devolve  upon  any  of  the  persons  named  in  the  law,  if  Congress 
be  not  in  session,  and  would  not  meet  by  law  within  twenty 
days  thereafter,  then  the  person  upon  whom  the  duties  of  the 
office  devolve  shall  by  proclamation  convene  Congress  in  ex- 
traordinary session,  *  giving  twenty  days'  notice  of  the  time  of 
the  meeting.'  Could  he  give  more  than  twenty  days'  notice  ? 
Ought  he  not  to  be  required  to  call  Congress  together  in 
twenty  days  in  no  uncertain  language  ?  Or  rather,  should  not 
the  coming  together  of  Congress  in  such  a  case  be  made  to 
happen  certainly,  and  not  be  dependent  upon  the  proclamation 
of  the  officer  succeeding  to  the  duties  of  the  presidency  ?  -" 

There  appears  to  be  a  plain  conflict  between  the  views, 
above  expressed,  of  the  late  Senator  Hoar  and  the  views 
of  the  committee  upon  several  of  the  questions  suggested 
in  the  committee's  report,  notably  as  to  whether  the 
death  of  the  President-elect  might  not  create  a  hiatus  in 
the  succession.  Evarts  declared  it  a  misfortune  that  the 
two  Houses  have  no  power  under  the  Constitution  to  fill 


Defects  273 

**the  little  space  between  the  electoral  count  and  the  4th 
of  March,  if  gap  it  be";  but  the  Constitution  gives  the 
power  to  legislate  only  when  both  President  and  Vice- 
President  die,  and  if  its  terms  do  not  cover  other  cases, 
there  is  a  defect  that  can  be  rectified  only  by  amendment. 
"If  a  President-elect  were  to  die  before  becoming  Presi- 
dent, would  the  Vice-President-elect  be  President  for  the 
term?"  is  the  vital  inquiry  of  the  Committee  on  Privi- 
leges and  Elections.  My  view  is  that  the  Constitution  has 
no  application  to  the  President-elect  or  Vice-President- 
elect in  these  provisions,  and  I  have  distinguished  the 
three  attendant  contingencies.  Hoar  concluded  that  the 
House  would  elect  in  case  of  the  death  of  the  President- 
elect ;  but  admitted  that  the  death  of  both  the  Presi- 
dent- and  Vice-President-elect, —  a  contingency  which  he 
declared  in  the  Senate  might  not  happen  once  in  five 
thousand  years,  but  which  in  his  autobiography  he  treats 
as  far  more  serious, — would  leave  the  country  without 
any  executive  head,  and  that  nothing  short  of  a  constitu- 
tional amendment  could  provide  against  the  emergency. 
An  extraordinary  provision  of  the  twelfth  amend- 
ment, due  to  the  narrow  jealousy  of  the  small  States, 
limits  the  House  of  Representatives  in  its  choice  to  the 
consideration  of  the  three  highest  names  on  the  list.  In 
1824  and  in  i860  there  were  four  candidates,  all  of  whom 
received  a  substantial  number  of  electoral  votes,  so  that 
it  is  easy  to  imagine  a  case  where  all  four  candidates 
might  have  the  same  number  of  votes  or  the  third  and 
fourth  candidates  have  an  equal  number  of  electoral 
votes;  and  in  either  of  these  cases  the  question  would 
arise  how  the  House  of  Representatives,  restricted  to 
a  choice  from  three  names,  could  proceed  to  an  elec- 
tion. Professor  Johnston  instances  these  possibilities 
in  an  article  on  the  Executive  in  Lalor  s  Cyclopcsdia,  and 
Mr.  Carlisle,  who  was  Secretary  of  the  Treasury  under 
President  Cleveland,  also  comments  on  this  remarkable 


2  74  The  Electoral  System 

limitation/  Assuming  that  there  might  be  three  or  four 
formidable  parties,  which  he  deems  not  unlikely,  believing 
the  tendency  in  the  direction  of  dispersion  rather  than 
consolidation,  Mr.  Carlisle  says  •. 

"If,  however,  owing  to  the  multiplicity  of  the  electoral 
tickets,  it  should  happen  that  more  than  three  persons  voted 
for  as  President  should  receive  the  highest  number  and  an 
equal  number  of  votes,  then  there  would  be  no  choice  by  the 
electoral  colleges,  and  there  could  be  no  constitutional  election 
by  the  House  of  Representatives,  because,  under  the  Constitu- 
tion, not  more  than  three  persons  could  be  voted  for  in  that 
body." 

And  if  there  should  be  more  than  two  of  the  candidates 
for  the  vice-presidency  in  a  similar  category,  the  Senate 
could  make  no  choice.  "In  all  such  cases,"  he  added, 
"the  electoral  system  would  exhaust  itself;  leaving  the 
country  without  an  elected  executive,  or  a  Vice-Presi- 
dent to  take  his  place."  By  the  original  clause  of  the 
Constitution  the  President  and  the  Vice-President  were 
to  be  chosen  in  the  House  from  the  five  highest  upon  the 
list.  The  resolution  for  the  twelfth  amendment,  as  it 
was  adopted  by  that  House,  authorized  the  selection  of 
the  President  from  the  same  number  of  persons,  but  in 
the  Senate,  upon  motion  of  Wilson  Carey  Nicholas,  the 
number  five  was  struck  out  and  a  blank  inserted  in  its 
stead.  Dayton,  of  New  Jersey,  wished  to  insert  five, 
but  his  motion  was  rejected,  whereupon  Samuel  Smith, 
of  Maryland,  moved  to  insert  three,  which  was  carried, 
1 8  to  13.  The  opposition  of  the  smaller  States  to  the 
larger  number  was  due  to  their  fear  that  the  use  of  the 
greater  number  would  tend  to  throw  the  election  into 
the  House,  and  that  a  candidate  from  a  large  State  who 
had  only  a  small  electoral  vote — Jay  had  only  one  such 

'  24  Forum. 


Defects  275 

vote  in  1801 — might  thus  secure  the  vote  of  that  body, 
where  the  vote  was  to  be  taken  by  States.  Thus  Smith, 
of  Maryland,  asserted  that  if  the  number  five  were  to  be 
continued,  and  the  House  of  Representatives  made  the 
last  resort,  the  choice  would  devolve  upon  the  House  four 
times  out  of  five.  Butler,  of  South  Carolina,  was  posi- 
tive that  if  the  small  States  agreed  to  the  amendment,  it 
would  forever  fix  the  combination  of  the  larger  States, 
which  would  choose  not  only  the  President  but  the 
Vice-President  in  spite  of  their  smaller  sisters.  Nicholas 
thought  that  with  the  smaller  number  "you  place  the 
choice  with  more  certainty  in  the  people  at  large."  John 
Quincy  Adams,  who  had  recently  been  elected  to  the  Sen- 
ate from  Massachusetts,  protested  against  any  change  in 
the  number  that  had  been  approved  by  the  House  of 
Representatives.'  He  would  suppose,  he  said,  that  there 
should  not  be  three  persons  voted  for;  or  that,  though 
three  or  more  should  be  voted  for,  none  of  them  should 
have  an  actual  majority  of  the  electors.  "What  would 
be  your  situation  then  ?  "  He  instanced  another  case,  that 
the  highest  two  should  have  an  equal  number  of  votes, 
and  that  there  were  to  be  a  third  and  fourth  who  should 
have  an  equal  number  also, — how  could  the  three  highest 
be  found  in  this  case  when  the  third  and  fourth  persons 
were  equally  high  in  votes?  He  also  raised  the  question 
"whether  some  explanation  should  be  given  of  the  prin- 
ciple upon  which  the  votes  were  to  be  counted."  The 
irony  of  fate  has  made  the  system  so  carefully  devised  to 
protect  the  smaller  States,  especially  when  operated 
under  the  general-ticket  plan,  work  against  the  designs 

'  Had  Adams'  argument  prevailed  with  the  Senate,  and  the  number 
"five  "been  retained  in  the  amendment,  it  is  an  interesting  speculation 
whether  he  would  have  ever  become  President,  Clay  could  then  have 
been  voted  for  in  the  House  of  Representatives,  as  well  as  Jackson,  Adams, 
and  Crawford,  and  Clay's  popularity  might  have  obtained  him  a  majority 
of  the  States. 


276  The  Electoral  System 

of  its  framers.  The  unpleasant  possibilities  of  a  failure 
of  choice  in  the  House  for  the  reasons  above  given 
should  lead  to  prompt  amendment. 

The  Constitution  fails  to  define  the  "inability"  of 
a  President,  although  it  declares  the  consequences  of  such 
inability.  The  protracted  illness  of  President  Garfield 
led  to  considerable  discussion  as  to  what  constitutes  a 
presidential  inability  within  the  meaning  of  the  Consti- 
tution, and  what  officer  or  body  should  pass  upon  the 
question  of  inability  and  determine  its  existence  and 
who  should  discharge  the  powers  and  duties  of  the 
President  in  case  of  such  inability.  A  series  of  articles 
in  the  North  American  Review ^^  in  November,  188 1, 
shows  an  interesting  variety  of  opinion.  Lyman  Trum- 
bull considered  that  the  word  "inability"  includes  both 
physical  and  mental  inability.  According  to  him,  while 
the  exercise  of  the  powers  and  duties  of  the  presidential 
office  would  devolve  upon  the  Vice-President  in  a  case 
of  "inability,"  the  Vice-President  would  not  become 
President,  and  upon  the  cessation  of  the  disability  the 
President  would  resume  his  office.  But  so  eminent  an 
authority  as  the  late  Judge  Cooley  defined  "inability"  as 
permanent  in  its  nature.  The  Vice-President  was  to  act 
in  the  case  of  the  President's  inability,  and  as  he  could 
do  so  no  more  after  the  inability  ceased  than  before  it 
commenced,  the  inability  contemplated  must  be  continu- 
ing or  one  that,  at  least,  would  threaten  an  inconvenience 
in  public  affairs.  He  argued  further  that  Congress  had 
the  power  to  provide  by  a  general  law  for  such  cases.  The 
late  Benjamin  F.  Butler,  of  Massachusetts,  construed 
"inability"  as  covering  every  bodily  or  mental  condition 
which  prevented  the  President  from  discharging  the 
duties  of  his  office  or  the  exercise  of  his  powers,  but 
denied  that  there  was  any  authority  in  Congress  to  make 
provision  by  legislation  for  the  case  of  "inability"  of  the 

^  133  N.  A.  R.,  417. 


Defects  277 

President  alone,  since  the  Constitution  simply  authorized 
Congress  to  make  legislative  provision  in  the  case  of  the 
removal,  death,  resignation,  or  inability  both  of  the  Presi- 
dent and  Vice-President. 

"  The  Constitution,  providing  expressly  what  Congress  may 
do  in  case  of  inability  of  both  President  and  Vice-President, 
excludes  the  idea  that  Congress  may  by  law  add  to  or  diminish 
the  constitutional  provision  as  to  what  shall  be  done  in  case  of 
the  inabihty  of  the  President  only  and  the  constitutional  de- 
volution of  the  duties  of  his  office  upon  the  Vice-President." 

The  late  Professor  Theodore  W.  Dwight  difTered  from 
all  other  participants  in  the  discussion  in  construing  the 
word  "inability"  in  accordance  with  the  English  common 
law.  "To  take  'inability'  or  'disability'  in  a  popular 
sense  would  be  to  enter  upon  a  shoreless  sea  of  conjec- 
ture." Whether  the  disability  was  permanent  or  tem- 
porary, the  Vice-President  having  once  become  clothed 
with  all  the  functions  of  the  office  of  the  chief  executive, 
nothing,  in  turn,  but  his  death,  removal  from  office, 
resignation,  or  inability  could  take  the  office  away  from 
him.  The  condition  of  mind  which  constituted  "inabil- 
ity" would  have  to  be  established  by  evidence  under  the 
forms  of  law  which  Congress  is  competent  to  prescribe, 
and  when  "inability"  was  properly  established  the  office 
would  devolve  upon  the  Vice-President ;  who  would  there- 
upon become  President,  retaining  the  office  until  the  end 
of  the  four  years'  term  unless  a  constitutional  disability 
should  intervene  to  require  surrender  of  the  office  by  him. 
Analysis  of  Section  6  of  Article  II.  of  the  Constitution 
also  reveals  grave  uncertainties  of  meaning,  if  not  abso- 
lute omissions,  which,  in  view  of  the  great  importance 
of  the  presidential  office  and  the  necessity  to  public  secu- 
rity that  there  should  never  be  a  break  in  the  continuity 
of  constitutionally  exercised  executive  power,  should  be 
promptly  remedied  by  constitutional  amendment. 


278  The  Electoral  System 

/  The  likelihood  of  electing  a  minority  candidate  in  the 
House  of  Representativesjfwhere  the  choice  depends 
upon  an  agreement  between  a  majority  of  States  having 
less  than  half  the  population  of  the  country,  and  the  pos- 
sibility, which  has  several  times  ripened  into  a  certainty, 
that  the  candidate  having  a  majority  of  votes  in  the  elec- 
toral colleges  may  have  obtained  only  a  minority  of  the 
suffrages  of  citizens,  that  is,  less  than  a  defeated  candi- 
date, should  be  sufficiently  potent  reasons  for  a  change 
in  the  method  of  electing  the  President^  When  all  the 
defects,  weaknesses,  and  dangers  of  the  present  system  are 
weighed,  they  should  more  than  counterbalance  the  con- 
servative disposition  which  is  hostile  to  revision.  Inas- 
much as  the  framers  of  the  Constitution,  admitting  the 
probability  that  their  work  might  need  alteration,  pro- 
vided two  methods  whereby  it  might  be  amended,  the  one 
with  the  consent  of  two  thirds  of  each  House  of  Congress 
and  the  approval  of  three  fourths  of  the  States,  the  other 
by  means  of  a  convention  to  be  summoned  into  being 
upon  the  request  of  two  thirds  of  all  the  States,  the  nar- 
row, unprogressive  spirit  which  fears  or  refuses  to  attempt 
a  remedy  for  existing  evils  should  yield  to  a  more  rational 
sentiment.  We  should  approach  the  solution  of  these 
problems  with  the  same  kind  of  faith  and  courage  that 
led  the  fathers  to  form  the  present  Union.  As  has  well 
been  said : 


"It  is  the  spirit,  not  the  letter,  of  our  Constitution  which 
has  made  it  so  successful  in  solving  the  greatest  political  prob- 
lems with  which  our  race  ever  had  to  deal,  and  in  showing  the 
world  how  civilized  peoples  may  be  governed.  We  only 
weaken  this  spirit,  and  do  no  honor  to  the  Constitution  or  its 
founders,  when  we  refuse  to  amend  it  in  the  way  the  document 
itself  provides. "  * 

^  Prof.  Simon  Newcomb,  N.  A.  R.,  vol.  clxxx.,  No.  i,  p.  16. 


Defects  279 

The  evils  entailed  by  the  system  are  not  light  or  tran- 
sient, but  enduring  and  threatening.  It  is  a  patriotic 
duty  not  only  to  point  out  their  existence,  but  to  warn 
against  their  continuance.  The  consideration  of  methods 
for  their  extirpation  is  a  business  which  may  well  engage 
the  attention,  as  it  will  task  the  powers,  of  our  wisest; 
statesmen. 

Note  to  Chapter  X 

Since  the  foregoing  chapter  was  written  I  have  found 
that  Hoar,  in  1898,  concluded  that  there  is  no  pro- 
vision in  the  Constitution  as  to  who  should  succeed  to 
the  presidency  if  the  President-elect  should  die  between 
the  date  of  the  vote  in  the  electoral  colleges  and  the  in- 
auguration. At  the  session  commencing  in  December, 
1897,  Senator  Frye,  of  Maine,  introduced  a  resolution  for 
an  amendment  to  the  Constitution  providing  for  the  suc- 
cession to  the  presidency  in  certain  contingencies.  In 
the  course  of  the  discussion  over  the  amendment,  which 
had  been  referred  to  the  Judiciary  Committee,  modified 
by  it,  and  then  favorably  reported.  Hoar  read  a  letter 
received  by  him  from  Mr.  Albert  W.  Paine,  of  Maine. 
Mr.  Paine's  communication  states  in  substance  that  the 
Constitution  fails  to  provide  for  the  contingency  of  the 
death  of  the  President-elect  after  the  electors  have  cast 
their  votes  in  January  and  before  his  inauguration  on  the 
4th  of  March.  Should  such  a  death  occur,  says  Mr. 
Paine, 

"there  is  no  provision  whereby  another  President  could  be 
elected  and  Congress  could  not  supply  the  deficiency,  so  that 
no  President  could  afterwards  be  legally  or  constitutionally 
chosen,  the  only  contingency  provided  for  being  that  of  the 
death  of  the  President.  The  person  elected  by  the  electors  as 
President  does  not  become  such  until  his  inauguration  in 
March  afterwards.     So  that  the  provision  cited  does  not  cover 


28o  The  Electoral  System 

the  case,  and  there  being  none  other  the  defect  charged  really 
exists  and  needs  an  amendment. ' ' 

Mr.  Paine  calls  attention  to  the  fact  that  had  Blaine  been 
a  candidate  for  the  presidency  in  1892  and  been  elected, 
as  his  death  occurred  on  January  27,  1893,  there  would 
have  been  no  constitutional  successor  to  President  Harri- 
son. Blaine  was  prominently  mentioned  as  a  Republican 
candidate  in  1892,  and  it  has  been  declared  that  nothing 
but  his  explicit  refusal  to  accept  precluded  his  nomina- 
tion in  the  summer  of  1892.  His  death  on  January  27, 
1893,  would  have  followed  a  successful  vote  for  him 
in  the  electoral  colleges,  but  would  have  preceded  the 
electoral  count,  which  took  place  on  February  8,  1893. 


CHAPTER    XI 

THE    APPOINTMENT    OF    ELECTORS    TREATED    HISTORI- 
CALLY— EVILS  OF  THE   GENERAL-TICKET  SYSTEM 

FROM  the  outset  of  the  Government  until  1832  great 
diversity  prevailed  in  the  methods  in  use  in  the 
different  States  in  the  appointment  of  electors ;  and  re- 
peated changes  were  made  in  almost  every  State  in  the 
law  prescribing  the  manner  of  their  selection.  Inasmuch 
as  each  State  Legislature  could  alter  the  method  at  its 
pleasure,  the  mode  of  election  became  "as  various  as  the 
views  of  different  States,  and  as  changeable  as  the  power 
and  ascendency  of  rival  parties."  Whether  the  district 
system,  as  Chief  Justice  Fuller  asserts,  and  as  Madison's 
writings  seem  to  show,  was  considered  by  many  of  the 
members  of  the  convention  of  1787  as  the  most  equitable, 
or  whether  there  was  any  consensus  of  opinion  among  the 
delegates  beyond  that  manifested  in  the  decision  to  en- 
trust the  appointment  to  each  State  Legislature,  it  is 
easy  to  perceive  the  disadvantages  entailed  by  the  failure 
of  the  fathers  to  agree  upon  a  uniform  plan  for  all  the 
States.  Hardly  had  the  Constitution  been  ratified  by 
the  requisite  number  of  States  ere  contests  arose  over 
the  method  of  appointment  of  electors;  and  these  con- 
tinued with  more  or  less  virulence  until  the  almost  uni- 
versal adoption  of  the  general-ticket  system  in  1832. 
New  York  failed  to  appoint  any  electors  in  1788,  and 
the  State,  through  party  contentions,  was  bereft  of  the 
honor  of  participating  in  the  first  election  of  Washington. 

281 


282  The  Electoral  System 

The  Anti-Federalists  and  partisans  of  George  Clinton, 
then  governor  of  the  State,  were  in  control  of  the  As- 
sembly, while  the  Federalists  dominated  the  Senate. 
The  lower  house  was  willing  to  vote  for  electors  in  joint 
session  per  capita  with  the  upper  house ;  but  to  this  the 
Senate  would  not  assent,  and  in  the  schism  between  the 
two  houses  the  vote  of  the  State  was  lost.  In  1800, 
Hamilton,  doubtless  the  greatest  constructive  statesman 
of  his  time,  asked  Governor  Jay  to  convoke  the  expiring 
Legislature  to  inaugurate  the  district  system  of  election 
without  permitting  the  voters  of  the  State  to  express  any 
choice  in  the  matter  of  the  change;  but  Jay  rejected  the 
proposal,  and  the  new  Legislature  chose  Republican  elec- 
tors. In  1824,  the  contest  between  the  friends  of  Craw- 
ford and  the  people's  party  as  to  the  mode  of  choosing 
electors  evoked  such  a  proscriptive  spirit  that  DeWitt 
Clinton  was  dismissed  from  his  ofBce  of  canal  commis- 
sioner, but  only  to  be  elevated,  by  an  outraged  people, 
through  an  overwhelming  vote,  to  the  highest  executive 
office  in  the  State.  Between  1788  and  1804  the  Legisla- 
ture of  New  Jersey  directly  appointed  presidential  elec- 
tors. The  law  was  changed  so  as  to  confer  upon  the 
people,  by  a  vote  throughout  the  State,  the  right  to 
choose  electors  in  1808.  But  in  181 2,  in  order  to  defeat 
the  election  of  electors  favorable  to  Madison  and  to  es- 
cure  the  appointment  of  Federalist  electors  to  vote  for 
DeWitt  Clinton,  the  Legislature  of  that  State,  only  three 
days  before  the  date  when  the  voters  of  that  common- 
wealth expected  to  exercise  their  privilege  at  the  polls, 
repealed  the  law  giving  the  choice  to  the  citizens  and 
arbitrarily  invested  itself  with  the  power  of  appointment. 
At  the  first  presidential  election  the  appointment  of 
electors  was  made  by  the  Legislatures  of  Connecticut, 
Delaware,  Georgia,  New  Jersey,  and  South  Carolina. 
This  mode  of  appointment  may,  in  some  instances,  have 
been  due  to  the  fact  that  the  governors  of  these  States 


I 


The  Appointment  of  Electors         283 

failed  to  call  the  Legislature  into  session  in  time  to  enact 
a  law  for  election  by  the  people.  Pennsylvania,  by  Act 
of  October  4,  1788,  provided  for  the  election  of  electors 
on  a  general  ticket.  Virginia,  by  Act  of  November  17, 
1788,  was,  for  electoral  purposes,  divided  into  twelve 
separate  districts,  while  for  the  election  of  Congressmen 
the  State  was  divided  into  ten  other  districts.  In  Massa- 
chusetts the  General  Court,  by  resolve  of  November  17, 
1788,  divided  the  State  into  districts  for  the  election  of 
Representatives  in  Congress,  and  provided  for  their  elec- 
tion December  18,  1788;  and  the  resolve  further  pre- 
scribed that  at  the  same  time  the  qualified  inhabitants  of 
each  district  should  give  their  votes  for  two  persons  as 
candidates  for  elector  of  President  and  Vice-President  of 
the  United  States,  and  from  the  two  persons  in  each  dis- 
trict having  the  greatest  number  of  votes,  the  two  houses 
of  the  General  Court  by  joint  ballot  should  elect  one 
elector,  and  in  the  same  way  should  elect  two  electors 
at  large.  In  Maryland,  where  the  election  was  exciting, 
under  an  act  passed  December  22,  1788,  electors  were 
elected  on  general  ticket,  five  being  residents  of  the 
Western  Shore  and  three  of  the  Eastern  Shore.  In  New 
Hampshire  an  act  was  passed  November  12,  1788,  pro- 
viding that  five  electors  should  be  elected  by  popular 
vote  or,  in  the  event  of  no  choice  by  this  method,  that 
they  should  be  appointed  by  the  Legislature  from  among 
twice  as  many  candidates  as  there  were  electors  to  be 
chosen.  At  the  election,  which  occurred  on  the  third 
Monday  of  December,  1788,  the  date  prescribed  by  the 
Legislature,  no  elector  received  a  majority,  and  the  duty 
of  choosing  electors  therefore  devolved  upon  the  Legis- 
lature, or  General  Court,  as  it  was  termed  in  the  New 
England  States.  But  no  method  of  choice  by  the  Legis- 
lature had  been  provided  in  the  law,  and  the  two  houses 
at  once  fell  into  antagonism  as  to  the  mode  of  procedure. 
The  lower  house  proposed  a  joint  ballot,  which  would 


284  The  Electoral  System 

have  placed  the  selection  under  its  control  as  the  more 
numerous ;  but  the  Senate  demanded  equal  right  of  ap- 
pointment, and  finally,  to  prevent  the  utter  sacrifice  of 
the  vote  of  the  State,  the  House  was  constrained  to  ap- 
prove of  the  electors  chosen  by  the  Senate.  But  this  was 
not  without  an  indignant  protest  that  its  acquiescence 
should  not  be  treated  as  a  precedent.  North  Carolina 
and  Rhode  Island  had  not  then  ratified  the  Constitution. 

Fifteen  States  participated  in  the  second  presidential 
election,  in  nine  of  which  electors  were  chosen  by  the 
Legislatures.  Maryland  and  Pennsylvania  elected  their 
electors  on  a  general  ticket ;  the  people  of  New  Hamp- 
shire did  the  same,  and  thus  avoided  a  recurrence  of  the 
contest  which  had  divided  the  two  houses  in  1788;  and 
Virginia  chose  her  electors  by  districts.  In  Massachu- 
setts the  General  Court,  by  resolution  of  June  30,  1792, 
divided  the  State  into  four  districts,  two  of  these  to  elect 
five  and  two,  three  electors.  Under  the  apportionment 
of  April  13,  1792,  North  Carolina  was  entitled  to  ten 
members  of  the  House  of  Representatives.  The  Legis- 
lature was  not  then  in  session,  nor  did  it  meet  until  No- 
vember 15th,  while  under  the  act  of  Congress  of  March  i, 
1792,  the  electors  were  to  ballot  for  President  on  Decem- 
ber 5th.  This  short  interval  between  the  assembling  of 
the  Legislature  and  the  date  fixed  for  the  meeting  of 
electors  allowed  no  time  to  enact  a  law  for  a  popular 
election.  The  Legislature  passed  an  act  dividing  the  State 
into  four  districts  and  directing  the  members  of  the  Legis- 
lature residing  in  each  district  to  meet  on  the  25th  of  No- 
vember and  choose  three  electors.  At  the  same  session  an 
act  was  passed  dividing  the  State  into  districts  for  the  elec- 
tion of  electors  in  1796,  and  every  four  years  thereafter.' 

Sixteen  States  took  paCrt  in  the  third  presidential  elec- 
tion, Tennessee  having  been  admitted  June  i,  1796.     In 

*  Some  of  these  facts  have  been  taken  from  the  opinion  in  McPherson  vs. 
Blacker. 


The  Appointment  of  Electors         285 

nine  States — Delaware,  New  Jersey,  Georgia,  Connecticut, 
New  York,  Rhode  Island,  Vermont,  Kentucky,  and  South 
Carolina — the  electors  were  appointed  by  the  Legislatures, 
and  in  Pennsylvania  and  New  Hampshire  by  popular  vote 
for  a  general  ticket.  Virginia,  North  Carolina,  and  Mary- 
land elected  by  districts.  The  Maryland  law  of  Decem- 
ber 24,  1795,  entitled  "An  Act  to  Alter  the  Mode  of 
Electing  Electors,"  provided  for  dividing  the  State  into 
ten  districts,  each  district  to  "elect  and  appoint  one  per- 
son, being  a  resident  of  the  said  district,  as  an  elector." 
Massachusetts  adhered  to  the  district  system,  electing 
one  elector  in  each  congressional  district  by  a  majority 
vote.  It  was  provided  that  if  no  one  had  a  majority  the 
Legislature  should  make  the  appointment  on  joint  ballot, 
and  the  Legislature  also  appointed  two  electors  at  large 
in  the  same  manner.  In  Tennessee  an  act  was  passed 
August  8,  1796,  which  provided  that  three  electors 
should  be  elected,  "one  in  the  district  of  Washington, 
one  in  the  district  of  Hamilton,  and  one  in  the  district  of 
Mero" ;  and,  in  order  that  the  said  electors  might  be 
elected  "with  as  little  trouble  to  the  citizens  as  possible," 
certain  persons  of  the  counties  of  Washington,  Sullivan, 
Green,  and  Hawkins  were  named  in  the  act  and  appointed 
electors  to  elect  an  elector  for  the  district  of  Washington ; 
certain  other  persons  of  the  counties  of  Knox,  Jefferson, 
Sevier,  and  Blount  were  by  name  appointed  to  elect  an 
elector  for  the  district  of  Hamilton;  and  certain  others 
of  the  counties  of  Davidson,  Sumner,  and  Tennessee  to 
elect  an  elector  for  the  district  of  Mero.  Electors  were 
chosen  by  the  persons  thus  designated.  The  law  of 
Pennsylvania,  as  has  been  stated,  provided  for  a  choice 
by  general  ticket,  and  the  result  in  that  State  was  thought 
likely  to  decide  the  choice  of  President. 

"  The  friends  of  Jefferson  had  been  very  anxious  for  a  choice 
by  districts,  which  would  have  divided  the  votes;   but  the 


286  The  Electoral  System 

Federalists,  confident  in  their  strength,  had  refused.  Great, 
therefore,  was  their  chagrin  to  find  that  the  heavy  vote  of  the 
trans-Alleghany  district  and  the  unexpected  majority  of  two 
thousand  for  the  opposition  in  the  city  and  county  of  Phila- 
delphia, had  carried  the  State  against  them  by  a  very  close 
vote,  onlv^i«e  of  the  Federalist  candidates  being  chosen."  * 

In  the  fourth  presidential  election  Virginia,  the  mother 
of  Presidents,  under  the  advice  of  Mr.  Jefferson, '^  adopted 
the  general  ticket,  at  least  "until  some  uniform  mode  of 
choosing  a  President  and  Vice-President  of  the  United 
States  shall  be  prescribed  by  an  amendment  to  the  Con- 
stitution";  and  Madison  introduced  the  general-ticket 
bill  in  the  House  of  Delegates  in  a  speech  declaring  that 
necessity  impelled  Virginia  to  this  change.  In  fact,  the 
preamble  to  the  bill  condemned  the  system.  Virginia's 
departure  from  the  district  system  and  her  adoption  of 
the  general-ticket  plan,  according  to  Barbour's  statement 
in  the  House  of  Representatives  on  March  9,  1826,  v^ere 
"demanded  by  the  right  of  self-defence  and  the  duties 
of  retributive  justice."  In  Massachusetts,  w^here  parties 
w^ere  more  equally  divided,  the  appointment  viras  as- 
sumed by  the  Legislature,  w^hich  passed  a  resolution 
providing  that  the  electors  of  that  State  should  be  ap- 
pointed by  joint  ballot  of  the  Senate  and  House. 

"In  Maryland  the  Federalists  controlled  the  State  Senate, 
and,  had  they  succeeded  in  carrying  the  House,  they  would 
also  have  adopted  a  choice  by  the  Legislature ;  but  in  the  elec- 
tion for  members  of  the  House,  which  had  just  taken  place, 
the  opposition  had  obtained  a  majority,  and  the  choice  by 

»  Hildreth,  Hist,  of  U.  S.,  iv,,  690. 

2  "  On  the  subject  of  an  election  by  a  general  ticket  or  by  districts,  most 
persons  seem  to  have  made  up  their  minds.  All  agree  that  an  election  by 
districts  would  be  best  if  it  could  be  general,  but  while  ten  States  choose 
either  by  their  Legislatures  or  by  a  general  ticket,  it  is  folly  or  worse  than 
folly  for  the  other  six  not  to  do  it."  Jefferson  to  Monroe,  January  12,  1800. 
— Randall's  Jefferson,  ii.,  521. 


The  Appointment  of  Electors         287 

districts  remained  as  before.    Similar  causes  produced  a  similar 
result  in  North  Carolina." 


In  Pennsylvania  also  the  ** opposition,"  as  Hildreth  styled 
the  Republicans,  "succeeded  to  their  wishes  in  electing  a 
majority  of  the  lower  house  of  the  Assembly;  but  the 
Federalists  still  retained  a  majority  in  the  Senate."*  The 
popular  body  wished  a  joint  ballot,  but  the  Senate  would 
not  consent.  The  differences  were  finally  harmonized  by 
the  passage  of  a  bill  by  which  each  house  was  to  nomi- 
nate eight  electors,  from  whom  by  joint  ballot  fifteen  elec- 
tors were  to  be  chosen.  The  result  gave  the  Republicans 
eight  and  the  Federalists  seven.  It  was  the  fear  that  the 
Legislature  of  Pennsylvania  would  cast  the  electoral  vote 
of  the  State  that  led  Ross  to  introduce  in  the  Senate  of 
the  United  States  the  bill  of  1800.  Six  States,  however, 
chose  electors  by  popular  vote,  Rhode  Island  supplying 
the  place  of  Pennsylvania,  which  theretofore  followed 
that  course.  Tennessee,  by  Act  of  October  26,  1799, 
designated  persons  by  name  to  choose  its  three  electors 
as  under  the  Act  of  1796. 

In  the  fifth  presidential  election,  the  first  under  the 
twelfth  amendment,  the  contest  was  close,  party  rivalry 
was  intense,  and  the  changes  in  the  law  governing  the 
mode  of  appointment  of  electors  in  several  of  the  States 
were  utterly  indefensible.  Massachusetts,  which  holds  a 
position  of  primacy  for  variations  in  the  method  of  choice 
of  electors,  now  abandoned  legislative  appointment  and 
passed  a  law  under  which  all  her  nineteen  electors  should 
be  chosen  over  the  entire  State  by  general  ticket.  The 
passage  of  the  law  was  vigorously  opposed  and  a  strong 
protest  made  by  the  minority  of  the  Legislature.  This 
protest  was  grounded  in  popular  feeling,  and  the  Repub- 
licans had  the  satisfaction  of  carrying  all  the  electoral 

»  Hildreth,  Hist,  of  the  U.  S.,\.,  p.  390. 


288  The  Electoral  System 

college  under  the  substitute  system.'  Connecticut,  with 
the  end  in  view  of  keeping  the  Republicans  from  return- 
ing many  electors,  retained  the  system  of  legislative  ap- 
pointment. New  Hampshire  abandoned  the  legislative 
method  in  1804  and  again  employed  the  general-ticket 
system,  but  the  Republicans  were  also  successful  in  this 
State.  At  the  presidential  election  of  1808  there  was 
another  volte  face  in  Massachusetts.  The  Federalists, 
being  in  the  ascendency,  provided  for  the  election  of 
electors  by  the  Legislature,  despite  a  message  from  the 
governor  advising  that  the  appointment  of  electors  ought 
to  be  submitted  to  the  people.  New  Jersey  this  year 
went  over  to  the  general-ticket  system. 

It  would  be  tedious  to  pursue  the  narrative  of  the 
numerous,  almost  kaleidoscopic  changes  in  the  methods 
of  selecting  the  men  who  were  to  represent  the  States  in 
the  choice  of  President  and  Vice-President.  The  animat- 
ing purpose  of  the  "diversified  and  clashing  expedients" 
adopted  by  the  States  was  the  political  advantage  of  the 
party  or  faction  in  temporary  control  in  any  State;  cer- 
tainly, whatever  the  intention  of  the  convention  of  1787, 
its  surviving  members  could  not  have  felt  much  gratifica- 
tion in  the  actual  operation  of  this  feature  of  its  work. 
Nor  were  these  startlingly  frequent  changes  limited  to 
the  electoral  system ;  they  pervaded  the  field  of  congres- 
sional representation.  Frequent  resolutions  were  intro- 
duced in  Congress  to  amend  the  Constitution  so  as  to 
establish  the  district  system  of  representation  for  mem- 
bers of  Congress  and  the  choice  of  presidential  electors. 
As  early  as  1801,  Hamilton  bent  his  energies  towards  the 
passage  of  an  amendment  providing  that  Congress  should 
lay  out  the  districts,  and  a  resolution  drawn  by  him  was 
presented  to  the  Legislature  of  New  York  by  De  Witt 
Clinton  and  adopted  by  it,  and  then  forwarded  to  Con- 

^  Jefferson's  pleasure  at  **  the  return  of  Massachusetts  into  the  fold  of  the 
Union"  was  keen. — Hist.  U.  S.,  Henry  Adams,  iii.,  p.  8. 


The  Appointment  of  Electors         289 

gress.  In  December,  181 3,  a  resolution  for  amendment 
was  introduced  in  the  House  of  Representatives  by  Israel 
Pickens,  of  North  Carolina,  who  was  ably  seconded  by 
his  colleague,  William  Gaston,  afterwards  a  judge  of  the 
State  Supreme  Court.  The  Pickens  amendment  was 
twofold :  it  provided  for  the  election  of  members  of  the 
House  in  districts,  and  required  electors  of  President  and 
Vice-President  also  to  be  voted  for  in  districts.  Resolu- 
tions of  the  Legislature  of  North  Carolina  advocating 
such  an  amendment  were  also  presented.  Pickens  de- 
scribed to  the  House  of  Representatives  the  unhappy 
condition  of  affairs  in  North  Carolina,  when,  just  prior  to 
the  election  of  1812,  she  abandoned  the  district  system 
and  decided  to  vest  the  choice  of  electors  in  the  State 
Legislature.  This  change  caused  more  agitation  than 
had  been  witnessed  since  the  Government  commenced ; 
the  district  system  was,  therefore,  immediately  re-estab- 
lished by  the  Legislature  and  "a  resolution  passed  by  a 
unanimous  vote  in  both  branches  recommending  the 
principle  of  the  amendment  now  proposed,  extending  it 
also  to  Representatives."  Pickens  acutely  perceived  that 
the  establishment  of  the  district  system  would  be  the 
death-knell  of  sectional  parties.  Gaston  strongly  urged 
the  amendment  because  it  would  insure  the  minority  in 
a  State  "against  the  intolerance  of  the  majority."  He 
drew  a  striking  picture  of  the  electoral  system  as  designed 
by  the  convention  of  1787  and  as  prostituted  by  caucus 
nominations: 

**  It  was  contemplated   that    the   people  from  each  State 

should  select  from  among  the  wisest  and  most  virtuous  of  their 

neighbors  the  persons  best  qualified  to  vote  for  a  President. 

The  original  primary  act  was  to  be  theirs  —  spontaneously 

theirs.     .     .     .     The  electors  thus  chosen,  thus  free  from  all 

irregular  impulse,  convening  in  each  State  on  the  same  day, 

and  under  circumstances  most  favorable  to  deliberation,  were 

to  vote  for  a  President,  and  immediately  afterwards  to  mingle 
19 


290  The  Electoral  System 

with  their  fellow-citizens,  from  whom  they  had  been  called 
forth  but  for  that  special  purpose.  Every  practicable  obstacle 
was  supposed  to  be  thrown  in  the  way  of  '  cabal,  intrigue,  and 
corruption.'  Thus  beauteous  smiled  the  theory.  .  .  .  How 
hideous  the  deformity  of  the  practice.  The  final  step  made  in 
the  election  is  by  those  whose  interference  the  Constitution 
prohibits.  The  members  of  the  two  Houses  of  Congress  meet 
in  caucus,  or  convention,  and  there  ballot  for  a  President  or 
Vice-President  of  the  United  States.  The  result  of  their 
election  is  published  through  the  Union  in  the  name  of  a 
recommendation.  This  modest  recommendation  then  comes 
before  the  members  of  the  respective  State  Legislatures.  Where 
the  appointment  ultimately  rests  with  them,  no  trouble  what- 
ever is  given  to  the  people.  The  whole  business  is  disposed 
of  without  the  least  inconvenience  to  them." 

But  the  large  States  were  potent  enough  to  defeat  the 
resolution. 

Pickens  renewed  his  efforts  in  December,  18 16.  Eras- 
tus  Root,  of  New  York,  declared  his  approval  of  the 
selection  of  Representatives  in  districts,  but  opposed  the 
election  of  electors  in  that  manner.  Jabez  D.  Hammond, 
the  historian  of  New  York,  who  was  also  a  member  of 
the  House,  ably  supported  the  principle  of  the  Pickens 
amendment.  Hammond,  thus  condemned  the  existing 
method:  "The  power  of  the  States  to  choose  or  direct 
the  manner  of  choosing  electors  for  the  presidency  is  a 
rotten,  a  gangrenous  part  of  our  Constitution,  which,  if 
not  removed,  will  infect  and  poison  the  body  politic." 

The  chief  opposing  argument  was  the  danger  of  "gerry- 
mandering," and  of  the  loss  of  power  by  the  large  States. 
The  resolution  was  divided  before  the  vote  was  taken. 
A  favorable  vote  was  obtained  upon  the  proposition  for 
the  election  of  members  of  the  House  in  districts,  but  the 
suggestion  to  elect  electors  in  districts  encountered  suc- 
cessful hostility,  and  the  House  ultimately  laid  the  reso- 
lutions upon  the  table. 


The  Appointment  of  Electors         291 

On  December  5,  1823,  George  McDuffie,  of  South 
Carolina,  one  of  the  ablest  Representatives  that  State 
has  ever  had  in  the  House,  moved  the  appointment  of  a 
select  committee  to  formulate  an  amendment  providing 
for  a  uniform  method  of  electing  members  to  the  House 
of  Representatives  and  of  choosing  electors  for  President 
and  Vice  -  President,  the  election  of  these  last  -  named 
officers  in  no  event  to  devolve  upon  the  House  of  Repre- 
sentatives. The  report  of  the  committee,  together  with 
the  resolutions  of  amendment  proposed  by  it,  was  pre- 
sented to  the  House  on  December  22,  1823.  The  report 
advocated  the  division  of  the  States  into  districts,  by  act 
of  Congress,  for  the  election  both  of  Representatives  and 
electors.  Although  the  discussion  of  this  report  might 
properly  find  a  place  in  the  succeeding  chapter,  it  may 
be  introduced  into  the  present  chapter,  for  no  abler  in- 
dictment of  "the  existing  system,  if  system  that  may  be 
called  which  is  without  system,"  has  ever  been  presented 
in  Congress;  nor  has  any  discussion  elicited  more  conclu- 
sive proof  of  the  injustice  of  the  general-ticket  method. 

"  Pre-existing  bodies  sufficiently  small  and  permanent  to  be 
exposed  to  the  tampering  arts  of  intrigue  and  corruption  ought 
to  have  no  agency  in  the  election  of  a  President  of  the  United 
States,  upon  any  ground  short  of  absolute  necessity.  State 
Legislatures  are  bodies  of  this  description,  and  there  is  no 
pretence  of  a  necessity  for  interposing  them  between  the  peo- 
ple and  the  electoral  college." 

Indeed,  in  proportion  as  the  number  of  such  intermediate 
agencies  is  increased,  the  chances  are  multiplied  that  the 
''will  of  the  people"  (a  phrase  much  in  vogue  at  the  time) 
will  be  defeated  in  the  choice  of  a  chief  magistrate. 
Nothing,  said  the  report,  would  arouse  the  people  to  in- 
telligent action  so  much  as  direct  participation  in  the 
election  of  the  chief  magistrate.     The  people 

**  have  been  so  long  accustomed  to  have  no  practical  agency 


292  The  Electoral  System 

in  the  election  of  a  President  that  the  idea  is  not  uncommon 
that  they  have  nothing  to  do  with  it.  As  the  inevitable  ten- 
dency of  this  state  of  popular  indifference  is  to  increase  the 
power  and  influence  of  political  managers  and  unprincipled 
combinations,  it  is  of  the  last  importance  that  it  should  be 
corrected  if  possible." 

The  committee  then  inquired  whether  "the  people  should 
vote  by  a  general  ticket  or  by  districts."  It  was  the  in- 
tention of  the  fathers  that  the  President  should  be  the 
choice  of  the  people  and  not  of  the  States.  It  is  true, 
they  contemplated  an  infusion  of  the  Federal  principle 
into  the  election  in  the  proportion  of  the  Senators  to  the 
Representatives  in  Congress ;  but  to  extend  that  principle 
to  the  whole  body  of  the  electors  would  be  nothing  less 
than  sacrificing  the  rights,  the  interests,  and  the  power 
of  the  people  to  the  false  and  imaginary  idol  of  State 
consolidation. 

"It  can  be  demonstrated  that  the  system  of  voting  by  a 
general  ticket  would  render  this  fundamental  principle  of  our 
Government  the  sport  of  accidental  combinations.  Six  of  the 
States,  for  example,  if  they  give  a  unanimous  vote,  can  elect 
the  President.  But,  if  they  vote  by  a  general  ticket,  the  can- 
didate who  obtains  a  bare  majority  of  the  popular  vote  receives 
the  unanimous  electoral  vote  of  the  State.  So  that,  assuming 
the  population  of  the  United  States  to  be  eight  millions,  a  little 
more  than  two  millions  of  the  people  might  elect  the  President." 

The  report  touches  the  vicious  principle  of  the  general 
ticket  in  such  telling  phrases  as  these : 

"  Let  us  suppose  that  there  are  two  States,  one  containing 
nine  hundred  thousand  people,  and  entitled  to  thirty  electoral 
votes,  and  the  other  containing  eight  hundred  thousand  peo- 
ple and  entitled  to  twenty-six  electoral  votes.  Let  us  further 
suppose  that  there  are  two  candidates  for  the  presidency,  of 
whom  one  is  supported  by  five  hundred  thousand  people  of  the 


The  Appointment  of  Electors         293 

first  supposed  State,  and  the  other  by  the  remaining  four  hun- 
dred thousand,  and  the  entire  eight  hundred  thousand  of  the 
other  State.  Under  these  circumstances,  the  candidate  who 
obtains  the  support  of  only  five  hundred  thousand  of  the  peo- 
ple would  receive  thirty  electoral  votes,  while  twelve  hundred 
thousand  people  could  give  the  opposing  candidate  only 
twenty-six!  According  to  this  system  of  false  equations,  a 
large  minority  of  the  people  is  precisely  equal  to  no  minority 
at  all.  By  thus  entirely  excluding  the  State  minorities  from 
the  calculation  in  making  up  the  general  aggregate  the  people 
are  literally  immolated  by  hundreds  of  thousands  at  the  shrine 
of  an  artificial  and  delusive  system,  which,  by  making  a  ma- 
jority equal  to  the  whole  vote  in  each  State,  gives  a  minority 
an  equal  chance  for  the  ascendency  in  the  Union. ' ' 

The  true  principle  prevails  in  all  other  popular  elections 
throughout  the  United  States.  In  the  election  of  the 
governor  of  a  State  by  the  people,  for  example,  a  candi- 
date does  not  count  the  unanimous  vote  of  every  county 
w^here  he  happens  to  obtain  a  majority,  but  the  respec- 
tive majorities  of  the  several  candidates  are  added  to 
their  respective  minorities,  and  the  aggregates  thus  pro- 
duced are  taken  as  the  true  expression  of  the  popular 
will.  In  eloquent  language  the  committee  concluded 
that  it  was  under  the  most  solemn  obligation  to  reject  a 
plan  "which  would  array  States  against  States  in  ambi- 
tious conflict  for  the  mastery,  and  equally  sacrifice  the 
inalienable  rights  of  the  people  and  the  general  harmony 
of  the  Union."  To  the  general-ticket  system  the  com- 
mittee deemed  there  was  one  unanswerable  objection. 
*'It  is  a  practical  proposition,  conclusively  established  by 
the  experience  of  all  the  States  where  the  experiment  has 
been  made,  that  this  system  tends  by  inevitable  necessity 
to  transfer  into  the  hands  of  a  few  the  power  of  control- 
ling the  entire  suffrage  of  the  State."  With  the  spirit  of 
prevision  which  just  and  acute  analysis  of  evil  symptoms 
either  in  the  body  politic  or  the  human  mechanism  often 


294  The  Electoral  System 

awakens,  and  which  seems  akin  to  prophecy,  the  com- 
mittee asseverated  that  if  the  plan  of  voting  by  general 
ticket  were  established, 

"  a  central  power  would  spring  up  in  every  State,  consisting 
of  the  ruling  politicians  of  the  day,  who  would  be  bound  to 
the  people  by  no  tie  of  regular  responsibility,  and  be,  in  every 
respect,  more  liable  to  cabal,  intrigue,  and  corruption  than 
the  Legislature  itself.  And  when  we  reflect  that  the  entire 
electoral  vote  of  a  State,  upon  which  the  presidential  election 
itself  might  turn,  would  frequently  depend  upon  the  integrity 
of  a  few  men,  perhaps  of  a  single  individual,  it  is  difficult  to 
conceive  a  state  of  things  in  which  there  would  be  stronger  in- 
ducements or  greater  facilities  for  intrigue  and  corruption." 

By  dividing  the  State  into  districts,  the  report  argued 
that  all  these  evils  would  be  avoided.  Perceiving  also  the 
preponderance  given  to  the  small  States  in  the  selection 
of  a  President  through  the  House,  the  committee  pro- 
posed that  this  method  of  choice  be  abolished,  and  that 
a  second  meeting  of  the  electors  should  be  held  in  case 
of  a  tie  vote  to  decide  between  the  highest  candidates. 
Thus  mutual  concessions  were  asked  both  from  large 
and  small  States. 

As  nothing  came  from  the  debate  in  1823,  considera- 
tion of  the  report  of  the  select  committee  was  resumed 
in  the  House  on  February  15,  1826.  The  chairman,  ad- 
dressing the  House  at  great  length,  reiterated  the  various 
reasons  for  the  adoption  of  the  district  system,  so  admi- 
rably set  out  in  the  report.  The  discussion  continued 
daily  until  a  vote  was  reached  upon  the  resolution,  as 
divided,  on  April  i,  1826.  The  convictions  and  prefer- 
ences of  a  large  number  of  members  were  expressed  dur- 
ing the  debate.  Some  of  the  strongest  men  in  the 
House,  including  Edward  Livingston,  of  Louisiana — 
author  of  the  civil  and  the  criminal  code  of  that  State 
and   the   draftsman    of    Jackson's    famous    nullification 


The  Appointment  of  Electors         295 

proclamation,  and  brother  of  New  York's  first  chancellor, 
Robert  R.  Livingston — and  Michael  Hoffman,  of  New 
York,  advocated  the  passage  of  the  resolutions,  while  the 
opposition  was  ably  represented  by  Storrs,  of  New  York, 
Archer  and  Stevenson,  of  Virginia,  Edward  Everett,  of 
Massachusetts,  and  others.  Livingston  went  so  far  as  to 
advocate  the  abolition  of  all  electors.  Polk,  who  repre- 
sented Tennessee,  commended  and  supported  him,  and 
Hoffman  asserted  that  his  constituents  wished  a  direct 
vote  by  the  people.  James  Buchanan,  also  destined  to 
be  a  President,  sat  in  the  House  as  a  member  for  Penn- 
sylvania, but  did  not  speak  upon  the  amendment.  Storrs 
assailed  the  proposed  amendment  as  at  variance  with  the 
theory  of  the  "compact"  between  the  States.  **It  was 
a  system  of  consolidation,  and  the  large  States  should 
oppose  being  broken  into  fragments."  Everett,  in  his 
hostility  to  any  change,  took  the  untenable  position  that 
the  power  to  amend,  which  was  reserved  in  the  Constitu- 
tion, was  to  be  exercised  only  by  making  amendments 
which  were  consistent  with  the  leading  provisions  of  the 
Constitution.  If  the  great  war  amendments  be  tested 
by  Everett's  theory,  they  were  an  invalid  exercise  of 
the  amending  power,  for  they  were  opposed  to  one  of  the 
essential  compromises  of  the  Constitution.  Yet  the 
speaker  plainly  intimated  that  the  Constitution  was  de- 
fective in  the  very  particulars  in  which  amendment  was 
then  sought:  "I  say  boldly — if  it  requires  boldness  to 
make  the  avowal — that  I  regard  it  in  this  most  essential 
feature  an  imperfect  system  of  government."  Everett 
sophistically  argued  that  the  general-ticket  and  the  dis- 
trict system  amounted  to  the  same  thing : 

"  On  the  general-ticket  system,  supposing  it  to  be  uniformly 
adopted  throughout  the  United  States,  the  unrepresented  mi- 
norities would  be  balanced  by  each  other,  or,  in  other  words, 
the  minority  whose  voice  is  not  heard  in  one  State  on  one  side 


296  The  Electoral  System 

of  the  question  would  be  balanced  by  the  minority  whose 
voice  is  not  heard  in  another  State  on  another  side  of  the 
question.  On  the  district  system  the  same  result  would  take 
place.  The  minority  represented  in  the  electoral  colleges  on 
one  side  of  the  question  in  one  State  would  be  balanced,  and 
being  balanced  would  be  neutralized,  by  the  minority  repre- 
sented in  another  State  on  the  other  side  of  the  question,  and 
therefore  in  their  practical  operation  there  would  be  very  little 
to  choose  between  the  two  systems. '  * 

While  it  is  true  that  under  the  district  system  the  voice 
of  the  minority  in  the  district  would  be  annihilated,  the 
argument  served  only  to  show  that,  gross  as  were  the  in- 
justices of  the  general-ticket  system,  the  district  system 
would  not  be  an  ideal  substitute.  The  Constitution,  said 
Everett,  was  based  upon  compromises,  and  the  contract 
into  which  the  States  had  entered  should  be  sacredly 
fulfilled,  but  there  should  be  a  protest  against  any  such 
inferences  as  were  drawn  by  the  honorable  mover  of  the 
resolutions.  "I  will  protest  against  popularity,  as  well 
as  votes  being  increased  by  the  ratio  of  three  fifths  of  the 
slaves."  He  had  no  serious  fear  of  geographical  parties. 
Party  of  all  kinds  in  excess  was  fatal,  and  if  the  general- 
ticket  system  tended  to  throw  the  power  of  the  State  into 
the  hands  of  political  intriguers,  like  consequences  would 
result  from  the  district  system.  As  a  friend  of  the  ad- 
ministration he  opposed  the  abolition  of  the  substitute 
election  in  the  House  of  Representatives. 

No  discussion  of  the  electoral  system  in  Congress  has 
ever  been  conducted  with  more  fulness  or  eloquence  or 
more  vigor  and  brilliancy  of  argument.  When  the  report 
came  up  for  final  consideration,  McDuffie  called  for  a 
division  of  the  question  into  two  branches.  The  vote 
was  first  taken  on  the  proposition  that  for  the  purpose  of 
electing  the  President  and  Vice-President  the  Constitu- 
tion ought  to  be  amended  in  such  a  manner  as  to  prevent 
the  election  of  these  ofificers  from  devolving  upon  Con- 


The  Appointment  of  Electors         297 

gress.  The  vote  upon  this  proposition  was  favorable, 
being  138  yeas  to  52  nays;  and  among  those  voting  for  it 
was  Buchanan.  Among  those  voting  in  the  negative 
may  be  noted  Daniel  Webster,  who,  singularly  enough, 
never  spoke  upon  any  phase  of  the  subject  during  the 
lengthy  debate.  Upon  the  second  proposition,  that  a 
uniform  system  of  voting  by  districts  ought  to  be  estab- 
lished, each  State  to  have  as  many  districts  as  it  had 
Senators  and  Representatives,  and  each  district  to  have 
one  vote,  the  vote  was  90  in  its  favor  to  102  against  it. 
Webster  voted  for  it,*  while  Everett  and  Buchanan  voted 
against  it.  The  failure  of  this  advocacy  of  the  district 
system  is  due  to  complex  causes.  The  large  States  were 
unwilling  to  adopt  a  system  that  would  divide  their  >-^V 
strength  unless  the  smaller  States  would  consent  to  abol-  '  ^ 
ish  the  provision  for  the  House  election.  Van  Buren,  in 
the  Senate,  had  advocated  a  compromise  of  this  nature. 
It  was  assumed  in  advance  of  the  campaign  of  1824  that 
the  election  of  the  following  year  would  take  place  in  the 
House.  The  apprehension  that  an  election  in  the  House 
would  be  frequent  seems  to  have  been  widespread.  Sec- 
tional feeling  also  played  a  part  in  defeating  the  McDuf^e 
plan.  In  the  midst  of  the  talk  about  election  by  the 
people,  there  arose  in  some  quarters  criticism  of  that  pro- 
vision of  the  Constitution  which  based  apportionment  in 
the  South  not  only  upon  freemen,  but  three  fifths  of  all 
other  persons.  Much  that  was  distasteful  both  to  the 
North  and  South  was  uttered  regarding  slavery  and  the 
representation  which  the  South  derived  from  its  slave 
population.     The  rapid  increase  in  slave  population  was 

'  Webster's  silent  approval  of  the  district  system  is  much  dwelt  upon  by 
its  eulogists.  Webster's  approval  of  the  Van  Buren  bill  of  1824,  which 
proposed  to  confer  upon  the  two  Houses  concurrently  the  authority  to 
reject  the  vote  of  a  State,  was  often  urged  in  the  debates  of  1876  as  a 
cogent  argument  in  favor  of  the  power  of  Congress  to  count  the  electoral 
vote.  But,  so  far  as  I  know,  there  is  no  speech  of  Webster's  in  the  records 
in  support  of  his  opinion. 


298  The  Electoral  System 

sufficiently  alarming  to  the  North,  in  the  augmenta- 
tion of  power  it  gave  the  slave  States  in  the  House  of 
Representatives,  and  many  were  reluctant  to  make  a 
change  that  might  enhance  its  influence  in  the  choice  of 
Presidents.  In  1800,  the  black  population,  upon  the 
admission  of  Polk  in  the  debate  of  1826,  furnished  eight- 
een Representatives,  and  in  1820,  but  a  fraction  short  of 
twenty  Representatives,  from  the  slave  States.  It  was 
estimated  that  at  the  next  census  the  blacks  would  furnish 
one  third  of  the  representation  from  those  States.  In 
the  light  of  these  facts  it  is  not  remarkable  that  Everett, 
who  always  professed  his  readiness  to  carry  out  fairly  the 
compromises  of  the  Constitution,  declared  himself  un- 
willing to  go  farther  and  increase  the  number  of  these 
compromises  by  a  constitutional  amendment.  The  ad- 
vocacy of  the  district  plan  by  men  like  McDuffie,  from  the 
Southern  States,  only  served  to  aggravate  the  fears  of  the 
North.  The  vote  against  the  district  system  came  also 
from  the  partisans  of  the  administration.  The  passions 
aroused  in  the  different  factions  in  the  canvass  of  1824 
had  not  subsided  before  this  question  was  projected  into 
the  arena  of  the  House.  McDuffie,  who  was  criticised 
for  his  sweeping  attacks  upon  Adams  and  Clay,  "the 
President  and  his  prime  minister,"  who  were  "using 
every  effort  to  prevent  the  adoption  of  this  proposition 
to  take  the  election  from  the  House  and  give  it  to  the 
people,"  rescued  his  motives  from  aspersion  by  declaring 
that  he  had  introduced  his  motion  in  the  House  more 
than  two  years  earlier,  "at  a  time  when  nothing  short  of 
the  gift  of  second  sight  could  have  foreseen  the  political 
combinations  and  events  that  have  since  taken  place." 
The  amendment  was  not  defeated  on  its  merits.  A  num- 
ber of  State  Legislatures  had  declared  in  favor  of  it,  and 
Hoffman,  in  answering  his  colleague  Storrs,  truthfully 
said  that  the  great  majority  of  the  people  of  New  York, 
as   their   opinion    could  be  gathered  by  debates,  news- 


The  Appointment  of  Electors         299 

papers,  speeches,  and  private  conversation,  demanded  a 
uniform  district  system. 

In  1824  the  electors  were  chosen  by  popular  vote,  by 
districts  and  by  general  ticket,  in  all  the  States  except- 
ing Delaware,  Georgia,  Louisiana,  New  York,  South 
Carolina,  and  Vermont,  where  they  were  still  chosen  by 
the  Legislature.  On  March  13,  1825,  the  Legislature  of 
New  York  established  the  district  system,  but  not  until 
it  had  first  polled  the  sentiment  of  the  people  by  formally 
submitting  the  question  to  them.  The  answer  was  so 
unequivocal  as  to  dispel  all  doubt  of  the  popular  desire 
for  an  election  by  districts.  The  act  provided  for  the 
appointment  of  one  of  the  thirty-four  presidential  electors 
in  each  district  by  the  voters,  and  authorized  the  electoral 
college  not  only  to  supply  vacancies  in  its  body,  but  also 
to  appoint  two  additional  electors  corresponding  with  the 
two  Senators  from  the  State  in  the  Senate  of  the  United 
States.  This  law,  upon  the  recommendation  of  Van 
Buren,  then  governor,  was  superseded  in  1829  by  the  law 
establishing  the  general-ticket  system.  In  1828,  Dela- 
ware and  South  CaroUna  alone  adhered  to  the  legislative 
system.  After  1832  electors  were  chosen  by  general 
ticket  in  all  the  States  excepting  South  Carolina,  where 
the  Legislature  chose  them  up  to  and  including  i860. 
The  legislative  mode  of  choice  was  adopted  by  Florida  in 
1868,  and  by  Colorado  in  1876,  as  prescribed  by  Section 
19  of  the  schedule  to  the  constitution  of  the  State,  which 
was  admitted  into  the  Union  August  i,  1876. 

The  abandonment  of  the  district  system  became  inevi- 
table as  the  few  States  which  had  employed  it  began  to 
realize  the  disadvantages  they  suffered  in  comparison 
with  the  States  that  had  adopted  the  general-ticket  sys- 
tem. Since  the  vote  of  the  State,  when  cast  in  solido, 
swung  the  whole  of  its  electoral  strength  in  favor  of  the 
candidate  of  one  party  or  the  other,  every  other  State  in 
which  that  party  was  ordinarily  dominant  would  naturally 


300  The  Electoral  System 

follow  such  example  and  thereby  enhance  the  influence 
and  importance  of  its  leaders  in  party  matters,  and  add 
to  the  prestige  of  the  State  itself.  States  under  the  con- 
trol of  the  opposition  could  not  afford  to  give  their  poli- 
tical adversaries  such  odds  as  would  result  from  the 
division  of  their  electoral  vote  by  the  continuance  of  the 
district  system,  while  their  enemies  were  casting  their 
electoral  votes  en  bloc.  Divide  et  impera  was  a  maxim 
of  no  application  to  such  contests.  Hence  the  rapid 
adoption  of  the  general-ticket  system,  which  amounts  in 
reality  to  a  poll  of  States,'  and  in  which  the  voice  of  the 
\/  minority  is  suppressed.  One  unhappy  consequence  is 
the  creation  in  every  State  of  a  class  of  political  leaders, 
often  persons  occupying  no  official  place,  whose  influ- 
ence in  achieving  party  successes  has  made  them  potent 
in  party  councils  and  party  appointments. 

It  has  been  argued  by  eminent  statesmen,  among 
whom  is  to  be  counted  George  F.  Edmunds,  that  the 
district  system  of  voting  for  electors  is  against  the  spirit, 
if  not  the  letter,  of  the  Constitution,  which  intended  the 
appointment  of  electors  to  be  the  act  of  a  State,  as  a 
political  integer,  and  not  of  districts  or  subdivisions  of 
the  State.  It  was  upon  this  assumption  that  a  bill  to  elect 
by  districts  was  defeated  in  the  New  York  Legislature  in 
1799.  The  highest  judicial  tribunal  of  the  nation,''  in 
1892,  by  unanimous  vote,  held  such  a  mode  of  appoint- 
ment to  be  entirely  in  conformity  with  the  organic  law. 
That  case  reviewed  the  validity  of  a  statute  of  Michigan, 
passed  May  i,  1891,  providing  for  the  election  of  an  elec- 
tor of  President  and  Vice-President  in  each  congressional 
district  of  the  State  and  two  electors  at  large,  one  to  be 
elected  in  the  eastern  district  and  the  other  in  the  west- 
ern district  of  the  State.     The  court,  in  upholding  the 

*  •'  The  present  mode  of  choosing  the  President  is,  though  not  generally 
so  called,  an  election  by  States." — Morton  in  Senate,  1873. 
^McPherson  vs.  Blacker,  146  U.  S.,  i. 


The  Appointment  of  Electors         301 

constitutionality  of  a  district  system,  made  the  following 
interesting  observations : 

"  It  is  insisted  that  it  was  not  competent  for  the  Legislature 
to  direct  this  manner  of  appointment  because  the  State  is  to 
appoint  as  a  body  politic  and  corporate,  and  so  must  act  as  a 
unit,  and  cannot  delegate  the  authority  to  subdivisions  created 
for  the  purpose;  and  it  is  argued  that  the  appointment  of  elec- 
tors by  districts  is  not  an  appointment  by  the  State,  because 
all  its  citizens  otherwise  qualified  are  not  permitted  to  vote  for 
all  the  presidential  electors.  ...  If  the  Legislature  possesses 
plenary  authority  to  direct  the  manner  of  appointment,  and 
might  itself  exercise  the  appointing  power  .  .  .  it  is  diffi- 
cult to  perceive  why,  if  the  Legislature  prescribes  as  a  method 
of  appointment  choice  by  vote,  it  must  necessarily  be  by 
general  ticket  and  not  by  districts." 

Although,  said  the  court,  the  Constitution  declares 

".  .  .  the  people  of  the  several  States  shall  choose  the  mem- 
bers of  Congress  (language  which  induced  the  State  of  New 
York  to  insert  a  salvo  as  to  the  power  to  divide  into  districts 
in  its  resolutions  of  ratification),  the  State  Legislatures,  prior 
to  1842,  in  prescribing  the  times,  places,  and  manner  of  hold- 
ing elections  for  Representatives,  had  usually  apportioned  the 
State  into  districts  and  assigned  to  each  a  Representative;  and 
by  Act  of  Congress  of  June  25,  1842  (carried  forward  as 
§  23  of  the  Revised  Statutes),  it  was  provided  that  where  a 
State  was  entitled  to  more  than  one  Representative  the  election 
should  be  by  districts.  It  has  never  been  doubted  that  Rep- 
resentatives in  Congress  thus  chosen  represented  the  entire 
people  of  the  State  acting  in  their  sovereign  capacity." 

The  court  reviewed  the  history  of  the  proceedings  of 
the  convention  of  1787: 

**  The  journal  of  the  convention  discloses  that  propositions 


302  The  Electoral  System 

that  the  President  should  be  elected  by  '  the  citizens  of  the 
United  States,'  or  by  the  *  people, '  or  'by  electors  to  be 
chosen  by  the  people  of  the  several  States,'  instead  of  by  the 
Congress,  were  voted  down  (Jour.  Con.  286,  288;  i  Elliot, 
Deb.  208,  262),  as  was  the  proposition  that  the  President 
should  be  *  chosen  by  electors  appointed  for  that  purpose  by 
the  Legislatures  of  the  States,'  though  at  one  time  adopted. 
(Jour.  Con.  190;  i  Elliot,  Deb.  208,  211,  217.)  And  a  motion 
to  postpone  the  consideration  of  the  choice  *  by  the  national 
legislature,'  in  order  to  take  up  a  resolution  providing  for 
electors  to  be  elected  by  the  qualified  voters  in  districts,  was 
negatived  in  committee  of  the  whole.  (Jour.  Con.  92;  i 
Elliot,  Deb.  156.)  Gerry  proposed  that  the  choice  should  be 
made  by  the  State  executives ;  Hamilton,  that  the  election  be 
by  electors  chosen  by  electors  chosen  by  the  people;  James 
Wilson  and  Gouverneur  Morris  were  strongly  in  favor  of 
popular  vote;  Ellsworth  and  Luther  Martin  preferred  the 
choice  by  electors  elected  by  the  Legislatures ;  and  Roger  Sher- 
man, appointment  by  Congress.  The  final  result  seems  to 
have  reconciled  contrariety  of  views  by  leaving  it  to  the  State 
Legislatures  to  appoint  directly  by  joint  ballot  or  concurrent 
separate  action,  or  through  popular  election  by  districts  or  by 
general  ticket,  or  as  otherwise  might  be  directed.  .  .  . 
The  district  system  was  largely  considered  the  most  equitable, 
and  Madison  wrote  that  it  was  that  system  which  was  contem- 
plated by  the  framers  of  the  Constitution,  although  it  was  soon 
seen  that  its  adoption  by  some  States  might  place  them  at  a 
disadvantage  by  a  division  of  their  strength,  and  that  a  uni- 
form rule  was  preferable."  * 

^  The  late  President  Harrison  is  to  be  numbered  among  the  oppo- 
nents of  the  district  system.  In  his  message  to  Congress,  December,  1891, 
he  advocated  an  amendment  to  the  Constitution  to  prevent  such  districting 
of  a  State  as  had  recently  occurred  in  Michigan.  The  message  read  : 
"All  the  States  have,  acting  freely  and  separately,  determined  that  the 
choice  of  electors  by  general  ticket  is  the  vi^isest  and  safest  method  ;  and  it 
would  seem  that  there  could  be  no  objection  to  a  constitutional  amendment 
making  that  method  permanent."  This  overlooks  the  causes  virhich  pro- 
duced the  general-ticket  system,  and  ignores  all  its  defects. 


The  Appointment  of  Electors         303 


TABLE    SHOWING    METHODS    OF    APPOINTING    ELECTORS    IN   DIF- 
FERENT   STATES    AT    DIFFERENT    DATES 


State. 

Appointments 
by  Legislature, 

By  Districts. 

By  General 
Ticket. 

Delaware              

1788-1828 
1800 

I 788-1 804 
1812 
I788-180O 
1808-1824 
1788-1820 
1800,  1808 
1816 

I 788-1 864 

1788 

1800 

I792-1824 

1812 

I 792-1 796 

I 792-1 800 

1808, i8t6 

1824 

I 792-1 796 

1824 

1816,  1820 

1788-1796,  1812 

1820 

1796-1832 

I 788-1 796 

1808-1816 

1828 

1792-1808 

1804 
1812 

1800-1824 
I 824-1 828 

1824,  1828 

1820,  1824 

1820-1828 
1824 

1832- 

1788-1796 
I 804-1 8 12 
1824- 
1808,  1816- 

New  Jersey.  , 

1804 ;  1828- 

Connecticut 

1824- 

Massachusetts 

1804,  1824- 

Maryland       

1788-1792  ; 

1836- 

1868- 

South  Carolina 

New  Hampshire 

Virginia 

1792, 1796 
1804- 
1800- I 804 
1824- 
1832- 

North  Carolina 

Rhode  Island 

i8i6- 
1800- 

Vermont 

1824- 

Kentucky 

1828-*  * 

Tennessee 

1832- 

Ohio 

1804- 
1828- 

Indiana 

1832- 
1824- 
1828- 

Illinois              

1824- 
1832- 

Maine 

Missouri     

1824- 

The  original  States  are  named  in  the  order  in  which  they  ratified  the 
Constitution,  the  others  in  the  order  of  their  admission  to  the  Union. 

One  evil  result  of  the  general-ticket  system '  is  its 
destruction  of  all  incentive  to  the  development  of  an 

'"One  great  objection  to  the  present  electoral  system  Is  that  it  abso- 
lutely circumscribes  the  power  and  the  rights  of  the  individual  voter.  He 
cannot  now  vote  for  the  man  of  his  choice  for  President,  but  must  vote  for 
electors.  There  may  be  two  sets  of  electors  representing  two  different 
parties  before  the  people,  but  he  may  not  be  in  favor  of  either,  and  would 


304  The  Electoral  System 

opposition  party  organization  in  States  in  which  one  of 
the  two  great  parties  is  constantly  predominant.  The 
district  system  or  an  apportionment  system  would  prob- 
ably have  led  to  the  formation  of  an  antagonistic  party 
and  to  active  political  work  in  districts  which  seemed  to 
be  auspicious  fields  of  operation.  In  many  of  the  South- 
ern States  in  the  decades  preceding  the  Civil  War  there 
was  no  Whig  or  Republican  organization,  because  such 
an  organization  had  no  chance  of  success  in  the  State  at 
large.  The  educational  influence  of  discussion  in  district 
centres  was  altogether  sacrificed  and  a  potent  factor 
against  the  tyranny  of  a  majority  party  utterly  lost.  In 
a  government  by  discussion  (to  borrow  a  phrase  from  the 
late  Walter  Bagehot)  social  and  political  development  is 
seriously  retarded ;  the  injury  which  a  community  thus 
persistently  dominated  by  one  party  sustains  is  almost 
incalculable.  The  baneful  consequences  of  the  general- 
ticket  system  were  witnessed  in  less  degree,  during  the 
free  silver  campaigns,  in  communities  where  the  advo- 

prefer  to  cast  his  vote  for  a  third";  yet  he  has  no  power  to  do  it.  It  would 
be  impossible  for  him  alone  in  the  State  in  which  he  lives  to  put  candidates 
for  electors  in  the  field  who  would  vote  for  the  man  of  his  choice.  That 
can  only  be  done  by  an  organized  party,  which  may  have  no  considerable 
vote  in  the  State  in  which  he  lives,  though  it  may  be  strong  in  other  States. 
As  an  illustration  :  In  1856,  thousands  of  men  in  the  Southern  States  were 
absolutely  deprived  of  the  right  of  voting  for  President  and  Vice-President, 
because  no  electoral  tickets  for  Fremont  and  Dayton  had  there  been  put  in 
the  field. 

"  In  effect,  the  electoral  system  absolutely  deprives  the  voter  of  his  power 
to  vote  for  men  of  his  choice  for  President  and  Vice-President  unless  there 
are  enough  of  his  way  of  thinking  in  the  same  State  to  meet  in  convention 
and  nominate  electors  to  represent  their  views.  Such  a  system  can  scarcely 
be  called  free  or  republican.  No  system  deserves  that  name  which  does 
not  enable  the  individual  voter  to  cast  his  vote  for  the  men  of  his  choice, 
whether  anybody  else  in  the  same  State  votes  for  them  or  not.  The  elec- 
toral system  makes  the  convention  or  caucus  indispensable  in  all  cases  and 
everywhere,  for  the  individual  voter  cannot  give  effect  to  his  vote,  or  give 
to  it  moral  or  political  significance,  unless  there  are  others  who  will  act  in 
concert,  that  is,  in  convention,  with  him  in  the  nomination  of  candidates 
for  electors." — Morton,  from  speech  in  Senate,  1873. 


Evils  of  the  General  Ticket  System    305 

cates  of  the  gold  standard,  however  numerous,  had  no 
chance  of  exerting  a  direct  influence  upon  the  choice  of 
presidential  electors,  because  they  were  out-voted  by  the 
friends  of  silver.  A  system  of  voting  that  would  permit 
the  expression  of  minority  views,  and  hence  give  a  more 
faithful  picture  of  opinion  through  a  State,  would  have 
more  promptly  checked  unsound  tendencies  in  finance. 
Government  by  majority  was  never  intended  to  nullify 
minority  sentiment ;  the  general-ticket  system  not  only 
renders  such  sentiment  inactive,  but  tends  altogether  to 
repress  it. 

In  States  in  which  opposing  party  organizations  flourish 
and  where  each  is  alternately  successful,  what  have  been 
styled  the  "close"  States,  the  temptation  to  fraud  re- 
ceives powerful  accession  under  the  general-ticket  system. 
Almost  every  critic  of  the  electoral  system  has  commented 
upon  this  obvious  danger.  A  fraudulent  ballot  cast  at  a 
presidential  election  in  New  York,  said  an  able  writer,* 
in  1873, 

"affects  thirty-five  electors,  or  nearly  one  fifth  of  the  whole 
number  requisite  to  the  choice  of  a  President.  In  Rhode 
Island  such  a  ballot  affects  only  three  electors,  or  less  than 
one  sixtieth  of  a  majority  of  the  whole  electoral  college.  Here 
is  a  direct  bounty  on  the  concentration  of  fraudulent  efforts  of 
all  kinds  in  the  large  States,  whereby  not  only  a  vicious  influ- 
ence of  fearful  intensity  is  thrown  into  the  scale  of  a  national 
election,  but  all  the  local  elements  of  corruption,  ever  suffi- 
ciently formidable  in  our  most  populous  States,  are  powerfully 
reinforced  "; 

whereas  "under  the  district  system,  on  the  other  hand,  a 
fraud  upon  the  ballot  box  can  affect  but  one  elector, 
unless  two  electors  at  large  should  be  chosen  in  each 
State,  in  which  case  but  three  electors  at  the  most  could 
be  affected  by  a  given  fraud." 

It  is  hard  to  conceive  of  a  system  more  easily  adapted 

»  Richard  H.  Dana,  Jr.,  in  117  A^.  ^.  A". 


3o6  The  Electoral  System 

than  the  general-ticket  system  to  the  successful  perpetra- 
tion of  fraud  or  offering  more  seductive  inducements  to 
its  commission.  The  closer  the  State,  the  more  bitter  is 
the  struggle  for  party  supremacy;  the  keener  the  com- 
petition for  success,  the  more  insidious  is  the  allurement 
to  fraud  and  the  easier  its  accomplishment,  because  it  is 
necessary  to  purchase  only  a  few  voters  in  a  particular 
section  carefully  chosen  as  the  most  promising  field  of 
nefarious  operations.  Thus  the  system  framed  by  the 
convention  of  1787,  as  now  operated  under  the  general- 
ticket  plan,  is  doubly  vulnerable  to  the  attacks  of  fraud 
and  corruption.  Electors  may  be  bribed.  Certainly  the 
electoral  system  offers  leonine  temptation  to  bribery,  and 
the  general-ticket  plan  renders  defeat  of  the  popular  will 
by  the  fraudulent  purchase  of  voters  in  a  close  State  a 
simple  and  easy  achievement  for  astute  and  dishonest 
politicians. 

The  densely  populated  States,  upon  the  general-ticket 
system,  constantly  tend  to  nullify  the  vote  of  the  smaller 
commonwealths.  It  has  several  times  happened  in  the 
history  of  the  nation  that  the  State  of  New  York  has  been 
the  determining  factor  in  a  presidential  campaign — the 
"pivotal"  State;  in  fact,  with  the  exception  of  the  cam- 
paigns of  1868  and  1876,  no  election  since  1856  has  gone 
in  favor  of  a  party  that  has  not  carried  New  York.  The 
tendency  which  has  been  so  marked  for  two  generations, 
and  is  increasingly  evident,  towards  the  concentration 
of  people  in  large  municipalities,  will  make  such  States 
even  more  influential  in  the  future,  their  big  electoral 
vote  more  and  more  decisive,  the  temptation  to  fraud 
more  seductive,  and  the  profit  from  its  successful  perpe- 
tration more  certain.  The  smaller  States  in  self-defence 
should  co-operate  to  bring  about  the  adoption  of  a 
juster  system.  If  their  influence  is  to  be  preserved, 
their  remonstrance  against  the  present  method  should  be 
emphatic.     New  York  to-day  wields  thirty-nine  electoral 


Evils  of  the  General  Ticket  System    307 

votes,  which  is  the  equivalent  of  thirteen  of  the  small- 
est States,  and  if,  under  the  system  at  present  in  vogue, 
a  transferred  vote  of  five  to  six  hundred  will  place  it 
in  the  Democratic  or  the  Republican  column, — and  no 
greater  change  would  have  taken  the  State  from  Cleve- 
land and  given  it  to  Blaine  in  1884, — the  incentive  to 
prostitution  and  abuse  of  the  suffrage  could  not  be  ren- 
dered stronger;  and  even  in  an  ideal  community,  where 
the  purity  of  the  ballot-box  is  untarnished,  the  vote  of  the 
big  State,  like  that  of  the  large  stockholder,  counts  rather 
in  a  geometrical  than  an  arithmetical  progression.  A 
plurality  or  majority  in  one  section  may,  it  is  true,  at 
times  be  counteracted  by  one  in  another  section,  and  thus 
the  net  result  be  a  rude  approximation  to  fairness,  taking 
the  country  as  a.  whole ;  but  this  theory  of  averages  may 
not  work  constantly,  and  the  steady  suppression  of 
minority  conviction  in  a  State  is  an  undisputed  evil. 

The  extent  to  which,  under  the  general-ticket  system, 
the  populous  States  become  decisive  factors  in  a  presiden- 
tial election,  and  the  minority  is  silenced,  may  easily  be 
illustrated  by  examples  selected  since  the  rise  of  the 
national-convention  system.  This  also  coincides  with 
the  general  adoption  of  the  general-ticket  system.  In 
1832  Jackson's  popular  vote  was  687,502,  his  electoral 
vote  219  out  of  a  total  of  288.  Clay's  popular  vote  was 
530,189,  while  his  electoral  vote  was  only  49.  In  other 
words,  Jackson  had  seventy-six  per  cent,  of  the  electoral 
vote  and  only  fifty-five  per  cent,  of  the  total  popular 
vote.  Jackson  carried  New  Jersey  with  its  eight  electoral 
votes.  While  the  result  would  have  been  unaffected  had 
the  State  gone  to  Clay,  Jackson's  vote  was  23,856;  Clay's 
23>393;  i^  other  words,  the  eight  electoral  votes  of  New 
Jersey  were  swung  by  the  narrow  margin  of  232  voters. 

In  1836  the  popular  vote  for  Van  Buren  was  762,698, 
his  electoral  vote  170  (including  three  from  Michigan, 
counted  in  the  alternative)  out  of  a  total  of  294.     William 


3o8  The  Electoral  System 

Henry  Harrison  had  a  popular  vote  of  549,567,  but  only 
73  electoral  votes.  Van  Buren  had  fifty-seven  and  seven 
tenths  per  cent,  of  the  electoral  vote,  fifty-two  and  nine 
tenths  per  cent,  of  the  popular  vote.  •  Van  Buren  carried 
Connecticut,  with  its  eight  electoral  votes,  by  a  plurality 
of  542  out  of  a  total  vote  of  about  38,000.  In  1840 
General  Harrison  had  a  popular  vote  of  1,275,016,  with 
234  electoral  votes  out  of  a  total  of  294;  while  Van  Buren 
had  a  popular  vote  of  1,128,702,  and  an  electoral  vote 
of  60.  Thus,  while  Harrison,  taking  Birney's  vote  of 
7069  into  consideration,  had  only  a  little  over  fifty  per 
cent,  of  the  popular  vote,  he  had  more  than  seventy-nine 
per  cent,  of  the  electoral  vote. 

In  Maine,  which  had  ten  electoral  votes,  Harrison  had 
a  popular  vote  of  46,612,  Van  Buren  of  46,201 ;  in  Penn- 
sylvania, which  had  thirty  electoral  votes,  Harrison  had 
144,021,  while  Van  Buren  had  143,672.  In  Michigan, 
which  had  three  electoral  votes,  Harrison  had  22,933, 
Van  Buren  21,131.  Thus  forty-three  ballots  in  the  elec- 
toral college  were  controlled  by  less  than  thirteen  hundred 
votes.  Conditions  in  1844  were  extraordinary,  for  Birney 
and  the  Conscience  Whigs  defeated  Clay.  Polk's  popu- 
lar vote  was  1,337,243,  his  electoral  vote  170  out  of  275 ; 
Clay's  popular  vote  was  1,299,068,  his  electoral  vote  105. 
Polk  had  less  than  fifty  per  cent,  of  the  popular  vote  and 
about  sixty-two  per  cent,  of  the  electoral  vote.  Birney 
polled  in  the  State  of  New  York  15,812  votes,  all  or 
nearly  all  drawn  from  the  ranks  of  the  Whigs.  Clay's 
vote  in  New  York  was  232,482,  Polk's  237,588.  The 
Conscience  Whig  defection  gave  the  State  to  Polk ;  with- 
out it,  his  electoral  vote  would  have  been  134,  and 
Clay's,  with  it,  would  have  been  141.  Birney's  vote  the 
country  over  in   1840  was  7069,  in  1844,  62,300,'  and,  as 

'  Blaine  gives  Birney's  vote  in  1844  as  58^879.  Authorities  differ  regard- 
ing some  of  the  figures,  but  the  differences  are  too  slight  to  vitiate  or  even 
affect  my  argument. 


Evils  of  the  General  Ticket  System    309 

Blaine  says,  "was  very  largely  at  the  expense  of  the 
Whig  party,  and  its  specific  injury  to  Mr.  Clay  is  almost 
a  matter  of  demonstration."  Had  the  district  or  the 
apportionment  system  been  in  vogue  in  New  York,  Clay, 
even  with  the  Birney  vote  against  him,  would  probably 
have  received  a  majority  of  the  electoral  ballots  of  the 
State. 

Taylor's  total  popular  vote  throughout  the  country  in 
1848  was  1,360,099,  the  vote  for  Cass  was  1,220,544,  for 
Van  Buren  291,263.  Taylor  had  less  than  forty-eight 
per  cent,  of  the  total  vote.  Taylor  had  163  votes  in  the 
electoral  colleges,  Cass  127,  the  total  electoral  vote  being 
290,  Taylor's  percentage  of  the  electoral  vote  being  fifty- 
six  and  four  tenths  per  cent.  Van  Buren  had  ten  per 
cent,  of  the  popular  vote,  but  not  a  single  electoral  vote ; 
yet  three  of  his  supporters  were  elected  to  the  House  of 
Representatives. 

Pierce  received  from  the  people  a  total  of  1,601,474 
votes,  Scott  1,386,580,  Hale  156,147;  Scott,  while  re- 
ceiving only  one  sixth  as  many  electoral  votes  as  Pierce, 
received  five  sixths  as  many  votes  at  the  polls.  Adding 
the  vote  of  Hale,  it  will  be  observed  that  out  of  a  total 
exceeding  three  millions,  Pierce's  absolute  majority  was 
but  58,747.  Pierce  received  254  electoral  votes  out  of  a 
total  of  296,  Scott  having  only  42 ;  in  other  words,  Pierce 
had  eighty-five  per  cent,  of  the  electoral  vote,  but  only 
fifty-one  of  the  popular  vote.  Although  Scott  carried 
only  four  States,  with  an  aggregate  electoral  strength  of 
42  votes,  his  popular  vote  was  only  215,000  behind 
Pierce. 

In  1856  Buchanan  received  at  the  popular  election 
1,838,169,  Fremont  1,341,264,  and  Fillmore  874,534 
votes.  The  total  vote  in  the  electoral  colleges  was  296, 
of  which  Buchanan  received  174,  Fremont  114,  Fillmore 
8 ;  Buchanan  had  forty-five  per  cent,  of  the  popular  vote 
and  fifty-nine  per  cent,  of  the  electoral  vote ;  and  Fill- 


3IO  The  Electoral  System 

more,  who  had  twenty-five  per  cent,  of  the  popular  vote, 
had  only  three  per  cent,  of  the  electoral  vote.  Fourteen 
of  his  supporters  were  elected  to  Congress,  which  shows 
to  what  extent  under  the  existing  system  the  vote  for 
him  was  nullified. 

The  results  in  i860  are  astonishing.  Douglas,  the 
champion  of  "popular  sovereignty,"  or  ** squatter  sover- 
eignty," as  it  has  been  indiscriminately  termed,  carried 
only  two  States,  yet  his  popular  vote  reached  the  enor- 
mous figure  of  1,376,000,  only  about  500,000  behind 
Lincoln,  who  carried  all  the  Northern  States  except  the 
two  that  supported  Douglas.  Lincoln's  popular  vote 
was  1,866,452,  that  of  Douglas  was  1,376,957,  of  Brecken- 
ridge  845,763,  of  John  Bell  589,581.  There  were  303 
votes  in  the  electoral  colleges,  distributed  as  follows :  To 
Lincoln,  180;  Douglas,  12;  Breckenridge,  72;  Bell,  39. 
Douglas,  with  a  popular  vote  much  larger  than  that  of 
Breckenridge,  had  only  one  sixth  of  the  latter's  vote  in 
the  electoral  colleges,  and,  while  he  had  two  and  a  half 
times  as  many  votes  as  Bell,  had  less  than  one  third  of 
Bell's  electoral  vote.  Lincoln  had  forty  per  cent,  of  the 
popular  vote  and  fifty-nine  per  cent,  of  the  electoral  vote. 
While  he  had  only  a  minority  of  the  popular  vote  in 
New  Jersey  he  had  four  out  of  its  seven  electors. 

"In  proportion  to  the  popular  vote  Lincoln  should  have  had 
121  electors;  Douglas,  89;  Breckenridge,  55;  Bell,  38.  If 
there  had  been  a  slight  diversion  of  votes  from  Mr.  Lincoln  in 
certain  States,  the  election  would  have  been  sent  to  the  House 
of  Representatives,  which  body  must  have  been  confined  in 
its  choice  to  the  three  candidates  highest  in  electoral  vote,  and 
Douglas  would  have  been  excluded,  although  second  highest 
in  popular  vote."  ^ 

A  frightful  crisis  might  have  been  precipitated  if  all  the 
four   candidates   had   obtained  an  equal  electoral  vote. 

^  Senator  Charles  R.  Buckalew,  of  Pa.     124  N.  A.  R.,  163,  164. 


Evils  of  the  General  Ticket  System    311 

The  duty  of  electing  would  have  devolved  upon  the 
House,  and  yet  the  House  could  not  have  proceeded  to 
exercise  its  constitutional  function,  unless  one  of  the  can- 
didates had  withdrawn  from  the  contest.  Such  a  case 
was,  plainly,  never  contemplated  by  the  framers  of  the 
Constitution.  The  same  utter  prostration  of  government 
might  have  occurred  had  Breckenridge  and  Bell  had  an 
equal  number  of  electoral  votes,  and  both  Lincoln  and 
Douglas  failed  of  a  majority.  There  would  then  have 
been  four  candidates  morally  entitled  to  be  voted  for  in 
the  House,  but  that  body  would  have  been  palsied  from 
lack  of  constitutional  power  to  vote  for  more  than  the 
three  highest  on  the  list. 

In  1864,  when  the  nation  was  battling  for  the  right  to 
live,  Lincoln  received  2,216,067  of  the  suffrages  of  his 
fellow-countrymen,  while  McClellan  received  1,808,725. 
The  total  electoral  vote,  including  the  vote  from  the  un- 
reconstructed States,  was  314,  of  which  Lincoln  had  212 
and  McClellan  only  21.'  Of  the  popular  vote  Lincoln 
had  fifty-five  per  cent.,  and  of  the  electoral  vote  cast, 
ninety-one  per  cent.  In  1868  the  popular  vote  for  Grant 
was  3,012,833,  for  Seymour  2,703,249;  nevertheless, 
Grant  had  214  electoral  votes  and  Seymour  only  80. 
The  total  was  317,  with  23  votes  not  counted  from 
Southern  States.  Grant  had  fifty-two  per  cent,  of  the 
popular  vote  and  seventy-three  per  cent,  of  the  electoral 
vote.  In  1872  Grant  received  a  popular  vote  of  3,597,- 
132,  and  had  286  electoral  votes;  Greeley  had  a  popular 
vote  of  2,834,125,  but,  as  his  death  occurred  before  the 
assembling  of  the  electoral  colleges,  none  of  the  electors 
voted  for  him,  except  three  in  the  Georgia  college. 
Grant's  percentage  of  the  popular  vote  was  fifty-five;  of 
the  electoral  vote  eighty-four. 

Senator  Morton,  in  the  Senate,  on  December  11,  1876, 

'  One  of  Nevada's  three  electors  died  before  the  popular  election  ;  hence 
the  state  cast  only  two  electoral  votes. 


312  The  Electoral  System 

after  presenting  a  tabulation  showing  the  disparity  be- 
tween the  percentage  of  the  popular  vote  and  of  the 
electoral  vote  for  the  successful  candidate  at  the  elections 
occurring  between  1844  and  1872,  read  from  a  compila- 
tion as  follows: 

'*  To  illustrate  the  operation  of  the  district  system,  we  will 
consider  the  comparative  results  of  the  election  for  President 
and  for  members  of  Congress,  in  the  four  States  of  Pennsyl- 
vania, Ohio,  Indiana,  and  Illinois,  from  i860  to  1872. 

"  These  States  voted  solidly  for  Mr.  Lincoln  in  i860,  casting 
seventy-four  electoral  votes.  At  the  same  election  they  re- 
turned sixty-six  members  of  Congress,  of  whom  twenty-four 
were  Democrats. 

"In  1864  the  same  States  cast  seventy-six  electoral  votes 
for  Mr.  Lincoln  again,  and  elected  the  same  year  sixty-eight 
members  of  Congress,  of  whom  sixteen  were  Democrats. 

"  In  1868  the  same  States  threw  seventy-six  electoral  votes 
solidly  for  General  Grant  and  elected  sixty-eight  members  of 
Congress,  of  whom  twenty-two  were  Democrats. 

"In  1872  the  same  States  voted  solidly,  giving  eighty-five 
electoral  votes  to  General  Grant,  and  elected  seventy-seven 
members  of  Congress,  of  whom  twenty-five  were  Democrats. 

"  In  these  four  States  the  Democratic  strength,  as  compared 
with  the  Republican,  has  been  about  nine  to  ten,  but  under 
the  operation  of  the  general- ticket  system  they  have  been 
wholly  unrepresented  in  the  electoral  colleges;  but  in  the 
House  of  Representatives  under  the  district  system,  they  have 
had  an  average  of  nearly  one  third  of  the  members. 

"  Take  the  State  of  New  York  alone  for  the  same  period. 
In  i860  New  York  cast  her  thirty-five  electoral  votes  solidly 
for  Mr.  Lincoln.  At  the  same  time  she  elected  thirty-three 
members  of  Congress,  of  whom  nine  were  Democrats. 

"  In  1864  she  again  cast  her  thirty-three  electoral  votes 
solidly  for  Mr.  Lincoln,  and  at  the  same  time  elected  thirty 
one  members  of  Congress,  of  whom  eleven  were  Democrats. 
In  1868  she  cast  her  thirty-three  electoral  votes  solidly  for  Mr. 
Seymour.     The  State  was  carried  for  Mr.   Seymour  by  his 


Evils  of  the  General  Ticket  System    313 

overwhelming  majority  in  the  city  of  New  York,  about  the 
character  of  which  grave  charges  were  made,  but  of  which  the 
committee  expresses  no  opinion;  but  the  rest  of  the  State,  un- 
affected in  their  districts  by  this  large  majority  in  the  city,  re- 
turned eighteen  out  of  the  thirty-one  members  of  Congress 
who  were  opposed  to  Mr.  Seymour,  thus  showing  conclusively 
how  the  voice  of  the  people  of  New  York  outside  of  the  city 
had  been  stifled  in  the  presidential  election  by  the  city  ma- 
jority, operating  through  the  general-ticket  system.  In  1872 
New  York  cast  her  thirty-five  electoral  votes  solidly  for  Gen- 
eral Grant,  at  the  same  time  electing  thirty-three  members  of 
Congress,  of  whom  nine  were  Democrats."  * 

The  disputed  election  of  1876  shows  some  interesting 
results.  The  popular  vote  for  Hayes  was  smaller  than 
for  Tilden,  whether  the  Republican  or  the  Democratic 
count  be  accepted.  The  total  Republican  count  was  as 
follows:  Tilden,  4,285,992;  Hayes,  4,033,768;  Peter 
Cooper  (Greenback),  81,737;  Green  Clay  Smith  (Prohibi- 
tionist), 9522.  The  Democratic  count  gave  Tilden 
4,300,590;  Hayes  4,036,298.  The  Republican  count  in 
Florida  gave  Tilden  22,927,  Hayes  23,849;  the  Demo- 
cratic count  showed  Tilden  24,434,  Hayes  24,340.  It  is 
clear  from  either  canvass  that  the  State's  four  electoral 
votes  were  controlled  by  a  very  few  voters.  In  Louisiana 
the  differences  between  the  Hayes  and  the  Tilden  votes 
were  much  larger,  whichever  figures  be  taken,  Democratic 
or  Republican.  In  Oregon  the  vote  for  the  Hayes  electors 
averaged  15,206,  for  the  Tilden  electors  14,149,  and  the 
probability  would  seem  to  be  that  had  the  election  taken 
place  in  districts,  Tilden  would  have  had  at  least  one 
district.  In  South  Carolina  the  Hayes  vote  was  91,870, 
the  Tilden  vote  90,896,  or  a  difference  of  974,  showing 
that  a  change  of  488  votes  would  have  given  the  State 

'  This  quotation  also  appears  in  the  last  article  written  by  Morton  on  the 
electoral  system,  which  was  published  in  the  North  American  Review, 
July,  1877. 


3H  The  Electoral  System 

undeniably  to  Tilden.  California's  six  electoral  votes 
were  carried  by  a  plurality  for  Hayes  of  1854  votes  out 
of  a  total  of  154,834.  Connecticut's  six  votes  went  to 
Tilden,  although  the  total  vote  was  close,  Tilden  having 
61,934  and  Hayes  59,034. 

In  1880  Garfield's  popular  vote  was  4,454,416,  Han- 
cock's 4,444,952.  Garfield  had  about  forty-nine  per 
cent,  of  the  total  popular  vote,  but  fifty-eight  per  cent, 
of  the  electoral  vote,  having  214  out  of  a  total  of  369  in 
the  electoral  colleges.  Both  the  leading  candidates  ran 
remarkably  close  in  California,  Garfield  having  80,348 
and  Hancock  80,426,  and  in  Oregon,  where  Garfield  had 
20,619  and  Hancock  19,948.  Garfield's  vote  in  New 
York  State  was  555,544,  Hancock's  534,511.  While 
Garfield  carried  the  State  by  over  21,000  plurality,  the 
whole  electoral  contest  hinged  upon  New  York,  for  the 
votes  of  the  State,  if  subtracted  from  the  Garfield  list 
and  added  to  the  Hancock  list,  would  have  elected  the 
latter.  Garfield's  plurality  represented  less  than  two  per 
cent,  of  the  State's  total  vote.  The  vote  in  California 
was  exceedingly  close,  Hancock  leading  Garfield  by  only 
78  votes  in  the  entire  State.  But  in  the  congressional 
election  of  the  same  year  the  Republicans  and  the  Demo- 
crats each  secured  two  Congressmen  in  California,  and  in 
New  York,  where  Garfield  exceeded  Hancock  by  about 
21,000  votes,  the  Democrats  that  year  obtained  fourteen 
Congressmen  and  the  Republicans  nineteen. 

Another  forcible  illustration,  not  only  of  the  weight  of 
the  vote  of  the  State  of  New  York  as  an  electoral  fact, 
but  of  the  injustice  of  the  general-ticket  system,  is 
furnished  by  the  election  of  1884.'  The  popular  vote  for 
Cleveland  was  4,874,986,  for  Blaine  4,851,981;  yet,  de- 
spite the  closeness  of  the  popular  figures,  Cleveland  had 
219  electoral  votes  and  Blaine  182,  out  of  a  total  of  401. 

1  It  must  be  understopd  that  this  is  a  criticism  of  electoral  methods,  and 
not  an  expression  of  regret  at  the  outcome  of  the  election. 


Evils  of  the  General  Ticket  System    3^5 

The  ratio  of  Cleveland's  popular  vote  is  less  than  fifty 
per  cent. ;  of  his  electoral  vote  fifty-five  per  cent.  New- 
York  State  gave  Cleveland  563,154,  and  Blaine  562,005. 
The  difference  in  their  votes  was  1149.  Had  575  citizens 
who  voted  for  the  Cleveland  electors  voted  instead  for 
the  Blaine  electors,  the  whole  electoral  weight  of  New 
York  (thirty-six  votes)  would  have  oscillated  to  the  Re- 
publican side.  Each  one  of  the  electoral  votes  of  the 
State  was  controlled  by  sixteen  voters ! 

In  1888  a  presidential  candidate  having  a  minority 
vote  was  again  successful.  Of  the  popular  vote  Harrison 
received  5,439,853,  Cleveland  5,540,329;  yet  Harrison 
had  233  votes  in  the  electoral  college  and  Cleveland  only 
168,  out  of  a  total  of  401.  Thus  Harrison  had  about 
forty-eight  per  cent,  of  the  aggregate  popular  vote,  but 
fifty-eight  per  cent,  of  the  electoral  vote.  The  vote  in 
Indiana  was  close,  but  not  decisive.  Harrison  had 
263,361,  Cleveland  261,013.  The  Republican  vote  for 
Congressmen  in  that  State  that  year  was  265,365,  the 
Democratic  259,987, — a  difference  of  5378  in  the  Repub- 
lican favor.  Upon  a  vote  closely  approximating  that 
cast  by  the  same  party  for  presidential  electors,  the 
Democrats  elected  ten  Congressmen  and  the  Republicans 
three.  In  1892,  Cleveland  and  Harrison  were  again  the 
candidates  of  the  two  great  parties,  Cleveland  receiving 
a  popular  vote  of  5,556,543  and  Harrison  5,175,582, 
Weaver,  the  candidate  of  the  Populists,  receiving  1,040,- 
886.  Cleveland's  percentage  of  the  vote  polled  by  all 
the  candidates  is  forty-eight.  In  the  electoral  college 
there  were  417  votes,  277  for  Cleveland,  145  for  Harri- 
son, Weaver  22,  Cleveland's  percentage  of  these  being 
sixty-six.  In  1896,  the  year  of  the  free-silver  campaign, 
McKinley's  popular  vote  was  7,111,607,  Bryan's  6,509,- 
052.  McKinley's  plurality  over  Bryan  was  602,555,  and 
his  majority  over  all  the  candidates  opposed  to  him  was 
106,874.     In  the  electoral  colleges,  out  of  a  total  of  447, 


3i6  The  Electoral  System 

McKinley  received  271,  Bryan  176.  Thus  McKinley  had 
nearly  sixty-one  per  cent,  of  the  electoral  vote,  and  a 
little  over  fifty  per  cent,  of  the  popular  vote.  The  free- 
silver  episode  seriously  affected  the  vote  of  California. 
McKinley  received  146,688,  Bryan  144,766;  yet  with  this 
strikingly  close  vote  eight  electoral  ballots  were  cast  for 
McKinley  and  one  for  Bryan  !  In  Kentucky,  McKinley's 
vote  also  slightly  preponderated  over  Bryan's,  McKinley 
receiving  218,171,  Bryan  217,890;  yet  McKinley  had 
twelve  of  the  electoral  votes  of  the  State  and  Bryan  one ! 
It  is  hardly  imaginable  that  with  a  similar  division  of  the 
popular  vote  in  California  and  Kentucky,  under  the  dis- 
trict system  or  the  apportionment  system,  the  electoral 
votes  would  not  have  been  very  differently  apportioned. 
In  1900  McKinley's  popular  vote  was  7,206,677,  Bryan's 
6,374,397,  McKinley  again  having  a  majority  over  all  his 
opponents,  for  the  total  vote  was  13,970,240.  The  num- 
ber of  votes  in  the  electoral  college  was  the  same  as  in 
1896,  but  of  these  McKinley,  in  1900,  had  292,  Bryan 
155.  McKinley,  with  a  little  over  fifty  per  cent,  of  the 
popular  vote,  had  over  sixty-five  per  cent,  of  the  electoral 
vote.'  The  only  comparatively  close  vote  was  in  Idaho, 
Kentucky,  and  Utah ;  in  Idaho  the  McKinley  vote  was 
27,198,  the  Bryan  vote  29,646,  giving  the  Democratic 
candidate  the  three  electoral  votes  of  the  State.  In  Ken- 
tucky, where  party  strength  had  been  remarkably  equal 
in  1896,  the  Republican  vote  was  227,128,  the  Democratic 
235,103,  showing  a  slight  shifting  of  sentiment  in  favor 
of  Democratic  doctrines  since  1896,  but  all  of  Ken- 
tucky's  thirteen    electoral    votes   being    polled    in    the 

^  At  the  election  of  1900,  a  recent  writer  says,  "  in  Boston  about  6300 
voters  voted  for  one  presidential  elector,  because  they  did  not  understand 
how  to  manipulate  the  ballot.  ...  In  New  York  city,  1088  citizens 
lost  their  vote  on  presidential  electors  by  failing  to  mark  their  ballots  cor- 
rectly."—" Prest.  Votes— A  Study  of,"  16  Pol.  Sci.  Q.,  63. 

Under  the  general-ticket  system  such  errors  might  decide  the  vote  of  a 
State,  and  determine  the  result  of  an  election. 


Evils  of  the  General  Ticket  System    Z17 

Democratic  column.  In  Utah  the  Republican  plurality 
was  2,133,  the  McKinley  vote  being  47»i39»  the  Bryan 
vote  45,006. 

In  1904  the  popular  vote  reached  the  enormous  total 
of  13,528,979,  the  total  of  the  vote  for  President  Roose- 
velt being  7,624,489,  for  Parker  5,082,754.  President 
Roosevelt's  wonderful  popularity  is  shown  in  his  great 
plurality  over  Judge  Parker  of  2,541,635.  His  majority 
over  all  his  opponents  was  1,729,809.  His  percentage  of 
the  total  popular  vote  was  fifty -six ;  of  the  electoral  vote 
seventy.  The  only  State  where  the  vote  was  remarkably 
close  was  Maryland,  where  Parker  had  109,446,  Roose- 
velt 109,497.  Twenty-six  popular  votes  would  have 
metamorphosed  the  electoral  vote  of  that  State,  but  the 
change  would  not  have  affected  the  general  result.  Al- 
though such  an  extraordinary  popular  tribute  to  and 
expression  of  confidence  in  a  presidential  candidate  is 
unparalleled  in  our  history,  excepting  in  Washington's 
case,  the  electoral  vote  so  far  outruns  the  popular  as  to 
confirm  the  conclusions  herein  reached.  Had  the  elec- 
toral corresponded  with  the  popular  vote,  Roosevelt's 
vote  in  the  electoral  colleges  would  have  been  268  instead 
of  336.' 

John  Quincy  Adams,  the  presidential  candidate  elected 
in  the  House  of  Representatives  in  1825,  was  a  minority 
candidate ;  a  fact  that  gave  rise  to  numerous  efforts,  both 
on  the  part  of  his  successor  in  that  office  and  of  Benton, 
Gilmer,  and  others,  to  bring  about  an  amendment  of  the 
Federal  Constitution  providing  for  the  election  in  districts 
and  abolishing  the  alternative  election  in  the  House  of 

'  Roosevelt's  astonishing  success  is  tempered  by  the  fact  that,  while  he 
received  about  418,000  more  votes  than  were  cast  for  McKinley  in  1900, 
there  was  an  enormous  loss  in  the  Democratic  vote,  only  explicable  upon 
the  theory  that  numerous  Democrats  failed  to  exercise  the  electoral  fran- 
chise. The  total  vote  of  the  country  was  442,000  less  in  1904  than  in  1900. 
The  percentage  of  voters  to  population,  which  was  i  to  5  in  1896,  fell  to  i 
to  5^  in  1900,  and  then  dropped  to  i  to  6^  in  1 904. 


3i8  The  Electoral  System 

Representatives.  Since  that  day  there  have  been  seven 
Presidents  elected  by  a  minority  of  the  whole  people, — 
Polk,  Taylor,  Buchanan,  Lincoln,  Hayes,  Garfield,  and 
Benjamin  Harrison.  Polk's  vote  was  24,000  less  than 
that  of  his  adversaries  combined.  Owing  to  the  heavy 
vote  polled  by  Van  Buren,  the  candidate  of  the  Free 
Soilers  in  1848,  Taylor  had  15 1,000  votes  less  than  all  the 
other  candidates.  Buchanan,  in  1856,  fell  short  of  all  his 
opponents  by  377,000.  Lincoln's  vote  in  i860  was  354,- 
000  less  than  the  combined  vote  of  Breckenridge,  Douglas, 
and  Bell.  Hayes  was  in  a  popular  minority,  in  1876,  of 
nearly  250,000,  Garfield  in  like  minority  of  308,000  in 
1880,  and  Harrison,  in  1888,  fell  short  of  his  opponents 
by  nearly  500,000.  A  minority  President  is  as  constitu- 
tionally President  as  an  executive  receiving  a  majority  of 
the  popular  vote.  The  country  has  long  been  accus- 
tomed in  State  and  local  elections  to  a  choice  of  officials 
by  a  plurality  vote.  But  there  was  an  adumbration  of 
truth  in  the  criticisms  of  Benton,  Jackson,  and  Dicker- 
son  upon  the  artificial  electoral  system  under  which 
Presidents  having  a  majority  of  the  electoral  vote  but  a 
minority  of  the  popular  vote  were  chosen.  To  a  minor- 
ity President  selected  upon  the  apportionment  plan  there 
can,  I  think,  be  no  valid  objection. 

Three  times  has  a  candidate  having  a  smaller  popular 
vote  than  his  leading  rival  been  successful  in  attaining 
the  presidency.  John  Quincy  Adams  was  such  a  minor- 
ity candidate  in  1824,  and  Hayes  was  such  in  1876.  In 
1888  Benjamin  Harrison  carried  twenty  States  and  had 
233  electoral  votes,  although  Cleveland  had  the  votes  of 
100,000  more  of  his  fellow-citizens  than  had  Harrison. 

One  of  the  most  anomalous  cases  is  the  vote  for  Doug- 
las in  i860.  Douglas  carried  only  New  Jersey  and  Mis- 
souri, yet  his  vote  was  over  500,000  more  than  that  of 
Breckenridge,  who  carried  the  solid  South,  and  was 
hardly  500,000  less  than  Lincoln's,  who  carried  seventeen 


Evils  of  the  General  Ticket  System    319 

States,  with  i8o  electoral  votes.  Evidently  the  Douglas 
leaven  had  permeated  the  entire  North.  Bell  won  in  the 
three  border  States,  Virginia,  Kentucky,  and  Tennessee. 
The  Lincoln-Douglas  vote  divided  the  North,  but  had 
little  or  no  significance  in  the  South.  Viewed  as  an  ex- 
pression of  the  conflict  of  Northern  sentiment  as  to  the 
proper  method  of  dealing  with  the  question  of  slavery 
extension  it  shows  that,  among  3,200,000  Northern 
voters,  the  division  of  opinion  was  in  the  proportion  of 
about  fl^  against  extension  into  the  new  Territories,  to 
J^  in  favor  of  permitting  the  Territories  to  decide  the 
question  for  themselves  when  they  should  become  States. 

The  policy  of  Lincoln  and  the  war  Congresses  is  com- 
monly supposed  to  have  been  triumphantly  vindicated  in 
1864,  for  Lincoln  had  212  electoral  votes,  from  twenty- 
three  States,  while  McClellan  got  only  21  electoral  votes, 
from  three  States.  The  popular  vote  for  Lincoln  in 
1864  was  2,216,067,  and  the  vote  for  McClellan,  upon  a 
platform  which  declared  the  war  a  failure,  was  1,808,725, 
a  difference  of  408,342  in  a  total  vote  of  a  little  over 
4,000,000.  Even  in  the  midst  of  a  civil  war  for  the 
perpetuation  of  the  Union,  if  the  vote  be  an  index  of 
convictions,  Union  sentiment  was  only  slightly  prepon- 
derant, for  about  forty-five  per  cent,  of  Northern  voters 
seem  to  have  been  ready  to  agree  to  a  permanent  separa- 
tion of  the  States. 

In  1848  Taylor  and  Cass  each  carried  the  same  number 
of  States,  but,  as  pointed  out  above,  New  York  was 
given  to  Taylor  by  Van  Buren's  presence  in  the  field. 
Once  since  then  have  the  States  been  evenly  divided  be- 
tween the  candidates  of  the  two  great  parties.  This  was 
in  1880,  when  Garfield  and  Hancock  each  got  nineteen 
States;  but  Garfield's  nineteen  carried  much  greater 
weight  in  the  electoral  college.  Had  Hancock  succeeded 
in  wresting  New  York  from  the  Garfield  column  he  would 
have  become  Hayes's  successor  in  the  presidential  office. 


320  The  Electoral  System 

In  the  election  of  1880  the  popular  vote  for  the  two  can- 
didates most  nearly  approximated  equality. 

Third  tickets  have  never  played  much  of  a  role  in 
politics  except  during  the  struggles  over  slavery  exten- 
sion. The  vote  for  Birney  in  1844  defeated  Clay,  as 
Seward  argued  to  Whig  audiences  that  it  would  surely 
do.  Seward  called  third-party  voting  "guerilla  war- 
fare," and  such  it  has  usually  proved,  but  it  was  most 
effective  "guerilla  warfare"  in  1844.  The  vote  for  Fill- 
more in  1856  seemed  to  augur  the  formation  of  a  new 
party.  The  American  party  symbolized  an  attempt  to 
construct  an  organization  which  should  ignore  the  slavery 
question, — the  burning  question  of  the  day, — and  it  met 
the  fate  of  all  inopportune  compromises.  It  was  not 
possible  to  ignore  this  question  or  to  build  a  party  upon 
the  narrow  creed  of  excluding  foreigners  from  office.  In 
the  State  elections  of  1857  the  party  suffered  a  complete 
rout,  great  numbers  of  its  members  going  over  to  the 
Republicans,  and  all  that  was  vital  of  it  was  soon  con- 
fined to  the  border  States,  where  obviously  the  disposi- 
tion to  silence  regarding  slavery  was  most  marked.  The 
Constitutional  Union  party  of  i860  was  its  legitimate  suc- 
cessor, but  with  the  issues  of  the  Civil  War  the  extinction 
of  the  latter  party  was  rapid  and  entire. 

After  the  Civil  War  and  the  settlement  of  the  slavery 
question,  no  third  organization  polled  any  substantial 
vote  until  1892,  when  the  People's  party,  out  of  a  total 
vote  of  12,154,517,  polled  1,122,045,  or  nearly  ten  per 
cent.  As  a  national  organization,  the  Prohibitionists 
might  almost  as  well  disband,  for  their  vote  is  too  slight 
to  warrant  the  belief  that  their  creed  will  ever  figure  in 
national  politics.  The  vote  of  the  Socialistic  party  in 
1904,  which  is  much  smaller  than  the  Populistic  vote  of 
1892,  and  represents  an  even  smaller  percentage  of  the 
total  vote,  indicates  no  probable  ascendency  of  its  prin- 
ciples, unless  that  party  eventually  fuses  with  one  or  the 


Evils  of  the  General  Ticket  System    321 

other  of  the  two  leading  organizations.  The  most  im- 
pressive fact  is  the  numerical  resemblance  between  the 
votes  of  the  two  great  parties.  The  natural  effects  of  this 
close  approximation  are  not  fully  felt,  because  under  the 
general-ticket  system  the  electoral  result  is  widely  dif- 
ferent. Before  the  projection  of  the  slavery  question  into 
the  arena  of  national  politics — when  parties  were  forming 
upon  the  issue  of  arresting  its  extension  into  new  Ter- 
ritories— the  divergence  between  the  total  vote  for  each 
of  the  leading  candidates  was  slight,  denoting  how  evenly 
party  lines  may  be  drawn.  During  the  Civil  War  and  the 
reconstruction  period  there  was  a  marked  increase  in  the 
Republican  majority,  owing  to  the  intensity  of  political 
excitement,  but  this  increase  would  have  disappeared  if  a 
vote  had  been  given  to  the  Southern  States,  which,  upon 
one  theory,  were  in  the  Union  all  the  while  they  were 
battling  to  destroy  it.  With  the  restoration  of  these 
States  to  their  old  places  the  same  close  approximation  of 
rival  votes  has  reasserted  itself.  The  only  extraordinary 
departure  from  the  normal  is  the  vote  of  1904,  due  in 
great  degree  to  the  ascendency  which  the  President's 
personality  has  gained  over  the  popular  mind. 

One  inference  from  these  election  figures  which  sharply 
obtrudes  itself  is  that  the  two  great  political  organiza- 
tions have  a  powerful  hold  upon  the  convictions  of  our 
fellow-citizens,  and  that  those  who  hope  to  bring  about 
a  new  alignment  must  reckon  with  agencies  to  compare  in 
potency  only  with  the  forces  of  nature.  The  lines  of 
cleavage  have  been  established  for  more  than  a  century. 
Crystallization  has  taken  place  about  the  two  opposite 
poles  of  strict  construction  and  liberal  construction  of  the 
Constitution,  and  nothing  less  than  a  political  convulsion 
able  to  shake  the  whole  fabric  to  its  centre  would  release 
the  atoms  from  the  control  by  which  party  traditions  and 
associations  hold  them.  The  two  chief  party  organiza- 
tions have  somehow  shot  their  roots  down  into  the  very 


322  The  Electoral  System 

hearts  of  the  citizens  of  this  country.  They  are  not 
parasitic,  and  it  is  futile  to  think  of  seriously  changing 
these  basic  adjustments,  without  the  lapse  of  a  great 
period  of  time,  except  through  some  political  cataclysm. 
The  outlook  in  the  near  future  for  some  third-party 
organization  which  shall  displace  one  of  the  two  great 
parties  of  the  present  day  is  unpromising  indeed.  In 
politics  men  are  as  conservative  as  in  religion,  perhaps 
more  so.  By  education,  traditions,  associations,  they 
are  so  inseparably  wedded  to  party,  that  not  even  when 
the  nation  is  in  an  agony  for  its  existence  will  they,  in 
any  great  degree,  ignore  party  attachments.  But  the 
salvation  of  the  country  lies  in  this  conservatism.  If 
great  masses  of  voters  could  suddenly  forget  party  affilia- 
tions, be  detached  from  old  connections  and  become  the 
sport  of  all  sorts  of  political  forces, — demagogic,  social- 
istic, aristocratic,  or  other, — the  outlook  for  free  govern- 
ment would  be  sombre  indeed. 

So  great  is  the  strength  of  party  attachment,  the  roots 
of  party  sentiment  run  so  deep,  that  it  would  be  foolish 
to  propose  any  amendment  that  should  fail  to  take  ac- 
count of  them.  Government  by  discussion  is  best  and 
most  efficiently  conducted  along  party  lines,  whether 
parties  should  be  permanent  or  only  temporary,  as  M. 
Ostrogorski  believes.  Party  government  is  an  indispen- 
sable factor  of  our  institutional  political  progress.  One 
cardinal  fault  in  propositions  to  amend  the  electoral  sys- 
tem is  in  the  defective  philosophy  that  has  sought  to 
abolish  parties.  The  Constitution  need  not  in  terms 
recognize  them  any  more  than  it  recognizes  their  conven- 
tions or  their  machinery,  but  no  amendment  can  ever  be 
passed  which  might  forbid  or  even  hamper  their  activity 
or  impede  the  natural  institutional  development  of  the 
.American  people. 

This  study  of  the  methods  that  have  been  employed 
hy  the  State  Legislatures  in  the  appointment  of  electors 


Evils  of  the  General  Ticket  System    323 

shows  the  eminent  desirability  of  a  uniform  system.  The 
evils  of  the  general-ticket  system  become  more  and  more 
potent  and  alarming.  Although  they  were  graphically 
depicted  in  1826,  in  the  report  of  Benton's  committee  to 
the  Senate  and  of  McDuffie's  committee  to  the  House,  it 
was  not  possible  then  to  appreciate  the  mighty  force 
wielded  by  a  great  State  in  crushing  the  opposition  of  a 
dozen  smaller  commonwealths.  Dickerson,  of  New  Jer- 
sey, in  1824,  thought  it  a  dangerous  portent  that  in  an 
election  by  electors  six  great  States  might  control  the 
election  and  completely  nullify  the  power  or  influence  of 
eighteen  others;  to-day  one  great  State  exercises  far 
more  influence,  for  its  decision  may  involve  the  destinies 
of  all  forty-five.  The  general-ticket  system  is  at  present 
universal,  but  the  control  over  the  method  of  appoint- 
ment which  the  present  Constitution  gives  to  the  States 
may  result  in  future  diversity.  It  cannot  be  foreseen 
what  powerful  impulsions  may  hereafter  arise  to  cause 
some  State  Legislature  to  disfranchise  the  people  and 
revest  itself  with  the  power  of  appointment  or  confer  it 
upon  some  small  coterie,  "the  directors  of  a  bank,"  or 
some  other  board  or  body  which  shall  thus  speak  the 
voice  of  the  State.  Uniformity  can  be  permanently  as- 
sured only  by  an  amendment  to  the  national  Constitu- 
tion. A  constitutional  provision  fixing  territorial  units 
for  electoral  votes  or  apportioning  the  electoral  vote  of  a 
State  in  the  ratio  of  its  popular  vote  among  the  different 
candidates  would  have  prevented  many  of  the  numerous 
factional  and  party  struggles  so  common  in  earlier  history, 
the  aim  of  which  was  so  to  control  electors  by  skilfully 
timed  changes  in  the  mode  of  appointment  as  to  subserve 
the  interests  of  individuals  and  organizations.  Time  has 
also  shown  the  force  of  some  of  the  objections  urged 
against  the  district  system.  The  device  of  the  "gerry- 
mander," as  Senator  Edmunds,  and  only  a  few  years 
ago,  said,  is  being  more  and  more  employed,  both  in 


324 


The  Electoral  System 


respect  of  congressional  representation  and  in  the  election 
of  State  Legislatures/  While  the  district  system,  prop- 
erly safeguarded,  would  insure  minorities  some  degree 
of  representation,  lessen  fraudulent  voting,  and  aid  in 
awakening  opposing  parties  within  a  commonwealth,  no 
system  yet  suggested  would  achieve  these  ends  so  com- 
pletely as  would  the  apportionment  system. 

'  "  Perils  of  our  National  Elections,"  12  Forum,  691.     The  article  gives 
a  picture  of  the  redistricting  of  Alabama,  February  13,  1891. 


CHAPTER   XII 

AMENDMENTS  OFFERED  IN  CONGRESS  RELATIVE  TO  THE 
ELECTORAL   SYSTEM 

THE  first  twelve  amendments  to  the  Federal  Constitu- 
tion were  added  within  fifteen  years  after  it  went 
into  operation.  No  changes  have  since  been  made  and 
no  additions  effected  excepting  those  which  were  the 
outcome  of  the  Civil  War.  The  demand  for  amendment 
was  strong  in  the  first  quarter  of  the  last  century,  but 
either  the  conservative  spirit  was  too  potent  or  there  was 
a  lack  of  agreement  as  to  the  form  which  the  change 
should  assume.  No  less  than  one  hundred  and  fifteen 
amendments,  according  to  McMaster,  were  proposed  in 
either  House  of  Congress  in  the  decade  between  i8io 
and  1820.  The  ruling  ideas  underlying  these  amend- 
ments, says  that  historian,  included  the  choice  of  Repre- 
sentatives and  presidential  electors  in  districts,  shorter 
terms  for  Senators,  the  appropriation  of  public  moneys 
for  the  building  of  roads  and  canals,  the  bestowal  upon 
Congress  and  the  States  of  concurrent  powers  to  train  the 
militia,  the  withdrawal  of  the  President's  right  of  veto — 
many  of  these  propositions,  as  he  says,  representing  but 
the  passing  notions  of  the  hour.  The  length  of  the  term 
of  the  executive,  the  manner  of  choosing  him,  his  eligi- 
bility to  frequent  re-election,  were,  says  the  same  writer, 
the  causes  of  seventy-five  propositions  to  amend  the  Con- 
stitution between  1820  and  1830.  "A  single  term,  a 
direct  popular  vote,  and  the  exclusion  of  members  of 
Congress  from  offices  within  the  gift  of  the  President 

325 


326  The  Electoral  System 

were  the  popular  political  ideas."  Allusion  has  already- 
been  made  to  the  amendment  offered  by  Pickens,  of  North 
Carolina,  in  1813  and  in  18 16.  Benton  labored  intermit- 
tently for  twenty  years  to  abolish  the  electoral  system 
and  to  secure  a  choice  of  President  and  Vice-President  in 
congressional  districts.  During  the  years  immediately- 
prior  to  1824  many  of  the  States  by  legislative  resolution 
expressed  their  disapproval  of  the  existing  method  of 
electing  the  President  and  Vice-President.  Inasmuch  as 
political  conditions  indicated  that  there  would  be  several 
presidential  candidates,  no  one  of  whom  might  obtain  a 
majority  of  the  electoral  vote,  and  that  the  election 
might  therefore  devolve  upon  the  House  of  Repre- 
sentatives, a  number  of  amendments  were  proposed  in 
the  Senate  and  the  House  in  1823,  but  none  received 
the  constitutional  vote  requisite  for  its  submission  to  the 
Legislatures  of  the  various  States.  The  authors  of  these 
amendments  were  men  enjoying  a  high  reputation  as 
statesmen  and  deeply  impressed  with  the  evils  of  the 
existing  method  and  the  importance  of  substituting  a 
better  system. 

Benton's  first  effort  was  made  December  11,  1823,  when 
he  introduced  in  the  Senate  a  resolution  for  an  amend- 
ment abolishing  the  electoral  office  and  providing  for  a 
direct  vote  by  the  people.  His  plan  contemplated  that 
each  State  should  be  divided  into  electoral  districts,  the 
voters  to  vote '  *  in  their  own  proper  persons' '  for  President 
and  Vice-President;  the  person  receiving  the  greatest 
number  of  votes  for  President  or  Vice-President  for  any 
district  was  to  count  one  vote  for  such  ofifice  respectively ; 
the  returning  ofHcers  were  to  decide  in  case  of  a  tie  in  any 
district,  and  if  no  candidate  was  found  to  have  a  majority 
of  all  the  electoral  votes,  the  House  of  Representatives 
was  to  choose  the  President  and  the  Senate  the  Vice- 
President.  In  his  Thirty  Years'  View  he  quotes  freely 
from  a  speech  delivered  by  himself  in  the  Senate  on  Feb- 


Amendments  Offered  in  Congress     327 

ruary  3,  1824,  in  support  of  his  proposition.  He  advo- 
cated the  establishment  of  a  uniform  system  throughout 
all  the  States.  The  district  system  would  give  to  every 
portion  of  the  Union  its  due  share  in  the  choice  of  the 
chief  magistrate;  the  people  of  each  district  would  be 
governed  by  its  own  majority,  and  not  by  a  majority 
existing  in  some  other  part  of  the  State ;  it  would  intro- 
duce a  plan  agreeable  to  the  interests  of  the  different 
sections  of  a  commonwealth  in  which  ideas  might  prevail 
different  from  those  predominant  in  other  sections,  and 
a  plan  agreeable  to  the  intention  of  the  Constitution, 
which  was  "to  give  to  each  mass  of  persons  entitled  to 
one  elector  the  power  of  giving  an  electoral  vote  to  any 
candidate  they  preferred."  He  explained  how  both  the 
general-ticket  system  and  a  legislative  ballot  violated  the 
rights  of  minorities,  because  "a  majority  of  one  in  either 
case  carries  the  vote  of  the  whole  State."  Objection  to 
a  direct  vote  of  the  people  had  a  weight  in  1787  to  which 
it  was  not  entitled  in  1824.  The  danger  of  tumults  and 
violence,  which  so  alarmed  the  fathers,  was  purely  fanci- 
ful. Intermediate  electors  were  the  favorite  institution 
of  aristocratic  republics  and  elective  monarchies,  whereas 
"a  direct  vote  by  the  people  is  the  peculiar  and  favorite 
institution  of  democratic  republics."  Time  and  experi- 
ence, the  only  infallible  tests  of  good  or  bad  institutions, 
had,  he  declared,  shown  that 

"  the  continuance  of  the  electoral  system  will  be  both  useless 
and  dangerous  to  the  liberties  of  the  people  and  that  *  the  only 
effectual  mode  of  preserving  our  Government  from  the  corrup- 
tions which  have  undermined  the  liberty  of  so  many  nations  is 
to  confide  the  election  of  our  chief  magistrate  to  those  who 
are  farthest  removed  from  the  influence  of  his  patronage,'  * 
that  is  to  say,  to  the  whole  body  of  American  citizens." 

'  Report  of  a  committee  of  the  House  of  Representatives  upon  Mr.  Mc- 
Duffie's  proposition. 


328  The  Electoral  System 

On  December  i6,  1823,  Mahlon  Dickerson,  of  New- 
Jersey,  and  on  December  29th  of  the  same  year  Martin 
Van  Buren,  of  New  York,  introduced  separate  amend- 
ments in  the  Senate,  each  of  which  required  that  electors 
should  be  chosen  in  districts.  Dickerson  proposed  in  the 
case  of  a  tie  vote  to  leave  the  choice  of  President  to  the 
two  Houses  in  joint  session,  thus  reviving  an  idea  which 
had  found  supporters  since  it  was  first  broached  by 
Nicholas  and  Gallatin  in  1800.  The  Van  Buren  amend- 
ment proposed,  in  the  first  instance,  that  if  there  were  no 
majority  choice  by  the  electors,  instead  of  immediately 
referring  the  election  to  the  House  the  electors  should  at 
once  be  reconvened  by  executive  proclamation  to  choose 
between  the  candidates  having  an  equal  number  of  votes, 
and;  if  they  failed  to  choose,  the  final  choice  in  case  of 
another  tie  was  to  be  made,  as  at  present,  by  the  House 
of  Representatives. 

On  December  22,  1823,  almost  concurrently  with  the 
presentation  of  these  amendments  to  the  Senate,  George 
McDuffie,  of  South  Carolina,  chairman  of  a  select  com- 
mittee on  the  subject,  proposed  an  amendment  in  the 
House  of  Representatives  providing  for  the  choice  of 
electors  in  districts  to  be  fixed  by  the  State  Legislatures 
or,  in  case  of  their  failure  to  act,  by  Congress.  His  plan 
required  the  president  of  the  Senate  by  proclamation  to 
reconvene  electors  to  make  choice  between  the  leading 
candidates  in  case  of  a  tie,  but  if  this  should  not  result 
in  an  election  the  two  Houses  of  Congress,  voting  indi- 
vidually and  not  as  States,  were  to  choose  the  President. 
If  no  choice  was  made  on  the  first  ballot  the  lowest  can- 
didate on  the  list  was  to  be  dropped  at  each  successive 
ballot  until  only  two  remained.  If  finally  there  were  a 
tie,  the  candidate  having  the  highest  vote  at  the  first 
meeting  of  the  electors,  or  if  there  were  none  such,  then 
at  the  second  meeting  of  electors,  was  to  be  chosen  Presi- 
dent.    If  the  reconvened  electors  failed  to  choose,  the 


Amendments  Offered  in  Congress     329 

two  Houses  were  to  continue  balloting  until  a  President 
should  be  chosen.  The  Vice-President  was  to  be  chosen 
by  the  same  means  by  the  Senate  in  case  of  a  tie.  Mc- 
Duffie's  plan  provided  for  opening  and  counting  the  votes 
as  at  present.  It  was  debated  but  never  acted  upon. 
McDuffie,  as  has  been  told,  in  December,  1825,  offered 
for  consideration  two  resolutions,  which  were  referred  to 
a  committee  of  the  whole  on  the  state  of  the  Union. 
These  resolutions  were  that,  for  the  purpose  of  electing 
the  President  and  Vice-President,  the  Constitution  should 
be  so  amended  that  a  uniform  system  of  voting  by  dis- 
tricts should  be  established  in  all  the  States ;  and  that  a 
further  amendment  should  be  made  to  prevent  the  elec- 
tion of  these  officers  from  devolving  upon  the  respective 
Houses  of  Congress.  The  fate  of  these  resolutions  has 
already  been  recounted. 

The  amendments  proposed  in  the  winter  of  1823-24 
were  not  of  fortuitous  origin,  but  sprang  from  a  sentiment 
that  the  constitutional  method  would  not  work  satisfac- 
torily in  the  election  of  1824.  As  early  as  February  14th 
of  that  year  a  caucus  assembled  in  the  chamber  of  the 
old  House  of  Representatives  and  nominated  William  H. 
Crawford  to  the  office  of  President  and  Albert  Gallatin 
to  that  of  Vice-President.  In  the  preceding  summer 
George  Hay  had  submitted  to  Madison,  the  veteran 
member  of  the  convention  of  1787,  a  form  of  amendment 
of  which  some  account  may  be  gleaned  from  Madison's 
reply  to  that  gentleman  August  23,  1823.  To  those 
whose  veneration  for  the  Constitution  is  almost  fetichis- 
tic,  the  opening  sentences  of  Madison's  letter  may  be 
commended  as  convincing  proof  that  the  convention  in 
its  provisions  touching  the  electoral  system  was  not 
** inspired."     Madison  wrote : 

"The  difficulty  of  finding  an  unexceptionable  process  for 
appointing  the  executive  organ  of  a  government  such  as  that  of 


330  The  Electoral  System 

the  United  States  was  deeply  felt  by  the  convention;  and  as 
the  final  arrangement  of  it  took  place  in  the  latter  stage  of  the 
session,  it  was  not  exempt  from  a  degree  of  the  hurrying  influ- 
ence produced  by  fatigue  and  impatience  in  all  such  bodies, 
though  the  degree  was  much  less  than  usually  prevails  in 
them." 

Of  the  plan  submitted  to  him  by  Hay,  Madison  said  : 

**  But  with  all  possible  abatements,  the  present  rule  of  vot- 
ing for  President  by  the  House  of  Representatives  is  so  great 
a  departure  from  the  republican  principle  of  numerical 
equality,  and  even  from  the  Federal  rule,  which  qualifies  the 
numerical  by  a  State  equality,  and  is  so  pregnant,  also,  with  a 
mischievous  tendency  in  practice,  that  an  amendment  to  the 
Constitution  on  this  point  is  justly  called  for  by  all  its  con- 
siderate and  best  friends. 

**  I  agree  entirely  with  you  in  thinking  that  the  election  of 
presidential  electors  by  districts  is  an  amendment  very  proper 
to  be  brought  forward  at  the  same  time  with  that  relating  to 
the  eventual  choice  of  President  by  the  House  of  Representa- 
tives. The  district  mode  was  mostly,  if  not  exclusively,  in 
view  when  the  Constitution  was  framed  and  adopted;  and  was 
exchanged  for  the  general  ticket  and  the  legislative  election  as 
the  only  expedient  for  baffling  the  policy  of  the  States  which 
had  set  the  example.  A  constitutional  establishment  of  that 
mode  will  doubtless  aid  in  reconciling  the  smaller  States  to  the 
other  change,  which  they  well  regard  as  a  concession  on  their 
part.  And  it  may  not  be  without  a  value  in  another  impor- 
tant respect.  The  States,  when  voting  for  President  by  gen- 
eral ticket,  or  by  their  Legislatures,  are  a  string  of  beads;  when 
they  make  their  elections  by  districts,  some  of  these  differmg 
in  sentiment  from  others,  and  sympathizing  with  that  of  dis- 
tricts in  other  States,  they  are  so  knit  together  as  to  break  the 
force  of  those  geographical  and  other  noxious  parties  which 
might  render  the  repulsive  too  strong  for  the  cohesive  tenden- 
cies within  the  political  system. 

'*  It  may  be  worthy  of  consideration,  whether,  in  requiring 


Amendments  Offered  in  Congress     331 

elections  by  districts,  a  discretion  might  not  be  conveniently 
left  with  the  States  to  allot  two  members  to  a  single  district. 
It  would  manifestly  be  an  important  proviso  that  no  new  ar- 
rangement of  districts  should  be  made  witnin  a  certain  period 
previous  to  an  ensuing  election  of  President. 

**  Of  the  different  remedies  you  propose  for  the  failure  of 
a  majority  of  electoral  votes  for  any  one  candidate,  I  like  best 
that  which  refers  the  final  choice  to  a  joint  vote  of  the  two 
Houses  of  Congress,  restricted  to  the  two  highest  names  on 
the  electoral  lists." 

Madison's  letter  then  proceeded  to  outline  his  own 
ideas : 

"Having  thus  made  the  remarks  to  which  your  communica- 
tion led,  with  a  frankness  which,  I  am  sure,  you  will  not  dis- 
approve, whatever  errors  you  may  find  in  them,  I  will  sketch 
for  your  consideration  a  substitute  which  has  occurred  to 
myself  for  the  faulty  part  of  the  Constitution  in  question: 

"  '  The  electors  to  be  chosen  in  districts,  not  more  than  two 
in  any  one  district,  and  the  arrangement  of  the  districts  not 

to  be  alterable  within  the  period  of previous  to  the 

election  of  President.  Each  elector  to  give  two  votes,  one 
naming  his  first  choice,  the  other  his  second  choice.  If  there 
be  a  majority  of  all  the  votes  on  the  first  list  for  the  same  per- 
son, he  of  course  to  be  President;  if  not,  and  there  be  a  ma- 
jority (which  may  well  happen)  on  the  other  list  for  the  same 
person,  he  then  to  be  the  final  choice ;  if  there  be  no  such  ma- 
jority on  either  list,  then  a  choice  to  be  made  by  joint  ballot 
of  the  two  Houses  of  Congress  from  the  two  names  having  the 
greatest  number  of  votes  on  the  two  lists  taken  together. '  Such 
a  process  would  avoid  the  inconvenience  of  a  second  resort  to 
the  electors,  and  furnish  a  double  chance  of  avoiding  an 
eventual  resort  to  Congress.  The  same  process  might  be 
observed  in  electing  the  Vice-President." 

These  quotations  plainly  reveal  Madison's  dissatisfaction 
with  the  method  prescribed  by  the  Constitution  for  an 


332  The  Electoral  System 

election  by  the  House  of  Representatives,  his  decided 
preference  for  the  district  system,  and  his  conviction  that 
its  employment  had  been  commanded  by  the  spirit, 
though  not  the  letter,  of  the  Constitution. 

In  a  letter  written  to  McDuffie  on  January  3,  1824, 
while  the  McDuffie  amendment  was  before  the  House, 
Madison  reiterated  the  views  set  forth  in  his  letter  to 
Hay;  and  a  few  days  later,  in  a  note  to  Jefferson,  he 
said: 

**  If  electoral  districts  and  an  eventual  decision  by  joint 
ballot  of  both  Houses  could  be  estabHshed,  it  would,  I  think, 
be  a  real  improvement;  and,  as  the  smaller  States  would  ap- 
prove the  one,  and  the  larger  the  other,  a  spirit  of  compromise 
might  adopt  both." 

The  presidential  election  of  1824  put  an  end  to  the 
practice  of  caucus  nominations,  but  it  did  not  terminate 
the  efforts  for  the  abolition  of  the  electoral  system. 
Benton,  in  his  Thirty  Years'  View,  says  that  the  resolu- 
tions presented  in  the  Senate  in  December,  1823,  were 
referred  to  a  select  committee  of  five,  but  as  no  definite 
action  was  taken  the  attempt  was  resumed  in  the  session 
of  1825-26.  The  number  of  the  committee,  fixed  at 
five  in  1824,  was  raised  to  nine  at  the  suggestion  of  Van 
Buren.  The  committee  was  appointed  by  Calhoun,  then 
Vice-President,  and,  says  Benton,  was  carefully  selected 
both  geographically,  as  coming  from  different  sections 
of  the  Union,  and  personally  and  politically,  as  being 
friendly  to  the  object  and  known  to  the  country.  The 
committee  consisted  of  Benton,  as  chairman,  Macon, 
Van  Buren,  Hugh  L.  White,  of  Tennessee,  Findlay,  of 
Pennsylvania,  Dickerson,  of  New  Jersey,  Holmes,  of 
Maine,  Hayne,  of  South  Carolina,  and  Colonel  Richard 
M.  Johnson,  of  Kentucky. 

The  committee  of  five,   early  in    1824,    reported   an 


Amendments  Offered  in  Congress     333 

amendment  substantially  like  the  Benton  proposition  of 
December,  1823.  Van  Buren  was  not  at  that  time  in 
favor  of  the  Benton  plan.  Division  into  districts  would 
tend  "to  reduce  greatty  the  present  weight  of  the  large 
States  in  the  general  scale"  by  "preventing  them  from 
bringing  their  consolidated  strength  to  bear  upon  the 
presidential  question."  The  Missouri  plan  asked  no 
concession  from  the  smaller  States.  Enlarging  upon  the 
great  disadvantage  the  more  populous  States  suffered 
from  the  equality  of  representation  in  the  Senate,  he 
asked 

"  whether  it  was  reasonable  to  expect  the  large  States  would 
ever  assent  to  the  proposition  of  the  gentleman  from  Missouri 
reducing  their  political  weight  in  the  confederacy,  without  any 
concession  of  any  kind  on  the  part  of  the  other  States.  He 
thought  not." 

It  was  his  judgment  that  if  the  States  were  to  be  dis- 
tricted, the  ultimate  choice  of  President  should  be  placed 
elsewhere  than  in  the  House,  and  decided  upon  more 
equitable  principles.  The  debate  in  the  Senate  became 
very  animated  on  March  18,  1824,  when  Rufus  King,  of 
New  York,  who  had  been  a  member  of  the  convention 
of  1787,  declared  the  time  inauspicious  for  a  sober  and  im- 
partial examination  of  the  various  amendments,  "in  view 
of  the  excitement  throughout  the  country  respecting  the 
next  pre,sidential  election."  King  then  launched  into  a 
bitter  arraignment  of  the  caucus  system,  denominating  it 
a  "great  central  power"  at  the  seat  of  government, 
"neither  deputed  from  nor  appointed  by  any  established 
rule  among  the  States,  but  proceeding  from  a  self-created 
body  unknown  to  the  Constitution,"  which  assumed  the 
right  to  nominate  the  President.  He  criticised  members 
of  Congress  for  devoting  more  of  their  time  during  a 
presidential  year  to  plans  for  the  election  of  their  candi- 
date than  to  the  legitimate  business  of  Congress.     The 


334  The  Electoral  System 

course  of  events  during  the  winter  had  led  near  observers 
"to  suspect  a  connection"  between  this  "formidable  cen- 
tral power"  and  "the  Legislatures  of  Georgia,  North 
Carolina,  Virginia,  and  New  York,  and,  perhaps,  of  other 
States."  He  preferred  to  adhere  to  the  existing  Consti- 
tution in  the  hope  that  "means  might  be  devised  to  sup- 
press this  power  which  is  now  oppressing  the  Constitution 
by  controlling  and  superseding  its  wise  and  well-con- 
sidered provisions."  The  debate,  which  continued 
through  three  days,  became  alternately  a- vindication  of 
and  attack  upon  the  caucus  system,  in  which  the  merits 
or  demerits  of  the  various  amendments  were  forgotten. 
As  Eaton,  of  Tennessee,  said,  "the  Senate  has  spent 
two  days  in  debating  whether  it  is  proper  for  members  of 
Congress  to  go  into  caucus."  Despite  the  protest  of  Van 
Buren,  Macon,  and  others,  a  motion  to  postpone  in- 
definitely all  consideration  of  the  proposed  amendments 
was  carried  by  a  vote  of  30  to  13,  Macon,  Benton, 
Dickerson,  and  Van  Buren  being  conspicuous  among  the 
negatives. 

Benton,  from  the  select  committee,  on  January  19, 
1826,  made  a  report  which  elaborately  set  forth  the 
grounds  upon  which  the  proposed  amendment  was  sup- 
ported. The  proposed  amendfnent  dispensed  with  elec- 
tors, created  electoral  districts  in  which  a  direct  vote  of 
the  people  was  to  be  taken,  and  obviated  "all  excuse  for 
caucuses  and  conventions  to  concentrate  public  opinion, 
by  proposing  a  second  election  between  the  two  highest 
in  the  event  of  no  one  receiving  a  majority  of  the  whole 
number  of  district  votes  in  the  first  election."  When 
the  subject  came  before  the  Senate,  on  May  8,  1826, 
Benton  stated  that  its  consideration  had  been  postponed 
upon  request  until  the  same  subject  had  been  discussed 
in  the  other  branch  of  the  legislature,  for  it  was  deemed 
inadvisable  to  carry  on  a  dual  debate  at  the  same  time. 
Such  had  been  the  issue  of  the  discussion  in  the  House 


t 


1 


Amendments  Offered  in  Congress     335 

that  it  was  not  deemed  wise  to  take  any  further  step  to 
obtain  a  definitive  vote  at  the  existing  session.  Benton 
declared  that  when  the  resolution  was  first  introduced  in 
1823  discussion  was  opposed  as  premature,  as  a  presidential 
election  was  soon  to  be  held.  Upon  its  reintroduction, 
the  occasion  was  again  said  to  be  inopportune,  as  it  was 
too  soon  after  the  election  and,  accordingly,  might  have 
a  bearing  on  the  events  of  that  election,  and  furthermore 
be  considered  personally  offensive.  It  was  impossible  to 
find  a  time  which  should  be  free  from  objection,  but 
Benton  solemnly  pledged  himself  to  continue  the  effort 
until  a  decisive  vote  should  be  reached,  and,  if  it  were 
not  reached,  to  transfer  his  exertions  "to  the  theatre  of 
the  people  themselves,  and  urge  the  call  of  a  national 
convention."  Van  Buren  observed  that,  while  the  ad- 
vanced stage  of  the  session  furnished  sufficient  reason  for 
postponement,  there  were  other  reasons.  The  result  in 
the  House  was  well  known  to  the  Senate.  Nothing 
could  be  done  at  that  session  in  the  upper  chamber,  but 
he  would  unite  with  the  chairman  to  press  the  matter  to 
a  favorable  conclusion  early  in  the  following  session,  not- 
withstanding the  decision  by  the  House.  Upon  no  point 
were  the  people  more  thoroughly  united  than  upon  the 
"propriety,  not  to  say  indispensable  necessity,  of  taking 
the  election  of  President  from  the  House  of  Representa- 
tives." In  support  of  this  conviction  he  could  appeal  to 
the  recent  vote  in  the  House.  But  the  small  States 
would  never  consent  to  give  up  their  power  without  an 
equivalent.  The  equivalent  with  which  they  should  be 
satisfied  was  "the  breaking  up  of  the  consolidated  strength 
of  the  large  States  by  the  establishment  of  the  district 
system."  After  remarks  by  other  members  of  the  select 
committee,  the  resolution,  on  Benton's  motion,  was 
tabled. 

The  amendment  reported  by  the  select  committee  of 
nine  is  so  important  that  it  is  reproduced  in  full : 


33^  The  Electoral  System 

**  That  hereafter  the  President  and  Vice-President  of  the 
United  States  shall  be  chosen  by  the  people  of  the  respective 
States,  in  the  manner  following:  Each  State  shall  be  divided 
by  the  Legislature  thereof  into  districts,  equal  in  number  to 
the  whole  number  of  Senators  and  Representatives  to  which 
such  State  may  be  entitled  in  the  Congress  of  the  United 
States;  the  said  districts  to  be  composed  of  contiguous  terri- 
tory, and  to  contain,  as  nearly  as  may  be,  an  equal  number  of 
persons  entitled  to  be  represented  under  the  Constitution,  and 
to  be  laid  off,  for  the  first  time,  immediately  after  the  ratifica- 
tion of  this  amendment,  and  afterwards  at  the  session  of  the 
Legislature  next  ensuing  the  apportionment  of  Representatives 
by  the  Congress  of  the  United  States ;  or  oftener,  if  deemed 
necessary  by  the  Legislature  of  the  State ;  but  no  alteration 
after  the  first,  or  after  each  decennial  formation  of  districts, 
shall  take  effect  at  the  next  ensuing  election  after  such  altera- 
tion is  made.  That,  on  the  first  Thursday,  and  succeeding 
Friday,  in  the  month  of  August  of  the  year  one  thousand 
eight  hundred  and  twenty-eight,  and  on  the  same  days  in  every 
fourth  year  thereafter,  the  citizens  of  each  State,  who  possess 
the  qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  State  Legislature,  shall  meet  within  their  respec- 
tive districts,  and  vote  for  a  President  and  Vice-President  of 
the  United  States,  one  of  whom,  at  least,  shall  not  be  an  in- 
habitant of  the  same  State  with  himself;  and  the  person  re- 
ceiving the  greatest  number  of  votes  for  President,  and  the 
one  receiving  the  greatest  number  of  votes  for  Vice-President 
in  each  district  shall  be  holden  to  have  received  one  vote; 
which  fact  shall  be  immediately  certified  to  the  governor  of 
the  State,  to  each  of  the  Senators  in  Congress  from  such  State, 
and  to  the  president  of  the  Senate.  The  right  of  affixing  the 
places  in  the  districts  at  which  the  elections  shall  be  held,  the 
manner  of  holding  the  same,  and  of  canvassing  the  votes,  and 
certifying  the  returns,  is  reserved,  exclusively,  to  the  Legisla- 
tures of  the  States.  The  Congress  of  the  United  States  shall 
be  in  session  on  the  second  Monday  of  October,  in  the  year 
one  thousand  eight  hundred  and  twenty-eight,  and  on  the  same 
day  in  every  fourth  year  thereafter;  and  the  president  of  the 


{ 


Amendments  Offered  in  Congress     337 

Senate,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, shall  open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number  of 
votes  for  President  shall  be  President,  if  such  number  be  equal 
to  a  majority  of  the  whole  number  of  votes  given;  but  if  no 
person  have  such  majority,  then  a  second  election  shall  be 
held,  on  the  first  Thursday  and  succeeding  Friday  in  the 
month  of  December,  then  next  ensuing,  between  the  persons 
having  the  two  highest  numbers,  for  the  office  of  President: 
which  second  election  shall  be  conducted,  the  result  certified, 
and  the  votes  counted,  in  the  same  manner  as  in  the  first;  and 
the  person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President.  But,  if  two  or  more  persons  shall  have 
received  the  greatest  and  an  equal  number  of  votes,  at  the  sec- 
ond election,  the  House  of  Representatives  shall  choose  one  of 
them  for  President,  as  is  now  prescribed  by  the  Constitution. 
The  person  having  the  greatest  number  of  votes  for  Vice- 
President,  at  the  first  election,  shall  be  the  Vice-President,  if 
such  number  be  equal  to  a  majority  of  the  whole  number  of 
votes  given,  and,  if  no  person  have  such  majority,  then  a  sec- 
ond election  shall  take  place,  between  the  persons  having  the 
two  highest  numbers,  on  the  same  day  that  the  second  election 
is  held  for  President,  and  the  person  having  the  highest  num- 
ber of  votes  for  Vice-President  shall  be  the  Vice-President. 
But  if  two  or  more  persons  shall  have  received  the  greatest 
number  of  votes  in  the  second  election,  then  the  Senate  shall 
choose  one  of  them  for  Vice-President,  as  is  now  provided  in 
the  Constitution.  But,  when  a  second  election  shall  be  neces- 
sary in  the  case  of  Vice-President,  and  not  necessary  in  the 
case  of  President,  then  the  Senate  shall  choose  a  Vice-Presi- 
dent, from  the  persons  having  the  two  highest  numbers  in  the 
first  election,  as  is  now  prescribed  in  the  Constitution." 

The  prominent  features  of  the  plan  as  described  by 
Benton  were:  "  i,  the  abolition  of  electors  and  the  direct 
vote  of  the  people ;  2,  a  second  election  between  the  tWo 
highest  on  each  list,  when  no  one  has  a  majority  of  the 
whole;    3,  uniformity   in    the   mode   of   election."     To 


33^  The  Electoral  System 

provide  for  a  possible  contingency,  a  tie  vote  at  the  second 
election,  which  Benton  thought  "too  improbable  ever  to 
occur,"  and  to  avert  the  necessity  of  a  third  popular 
election,  a  resort  to  the  House  of  Representatives  was 
provided.  The  plan  was  unanimously  recommended  by 
the  whole  committee,  but  it  did  not  receive  the  requisite 
support  of  two-thirds  of  the  Senate.  Benton  appreciated 
the  difficulty  of  carrying  a  project  for  an  amendment 
through  Congress  unless  it  had  what  he  termed  "the 
powerful  impulsion  of  the  people"  to  urge  it  through 
the  Houses. 

**  Select  bodies  are  not  the  places  for  popular  reforms. 
These  reforms  are  for  the  benefit  of  the  people,  and  should 
begin  with  the  people ;  and  the  Constitution  itself,  sensible  of 
that  necessity  in  this  very  case,  has  very  wisely  made  provision 
for  the  popular  initiative  of  constitutional  amendments." 

So  optimistic  was  the  great  Missourian  that  he  continued 
his  efforts  for  twenty  years. 

*'  There  should  be  no  despair  on  account  of  the  failures 
already  suffered.  No  great  reform  is  carried  suddenly.  It  re- 
quires years  of  persevering  exertion  to  produce  the  unanimity 
of  opinion  which  is  necessary  to  a  great  popular  reformation; 
but  because  it  is  difficult,  it  is  not  impossible." 

This  amendment,  had  it  been  ratified,  would  have  left 
no  pretext  for  caucuses  or  conventions;  it  was  too  radical 
and  was  not  in  consonance  with  the  evolution  of  party 
government.  It  naturally  failed  to  provide  for  the  prob- 
lems in  counting  votes  which  were  soon  to  begin  to  vex 
leaders  in  Congress.  Jackson,  in  his  first  message  to 
Congress,  lent  the  proposition  all  his  support.  "The 
mode  may  be  so  regulated,"  he  argued,  "as  to  preserve 
to  each  State  its  relative  weight  in  the  election ;  and  a 
failure  in  the  first  attempt  may  be  provided  for,  by  con- 


Amendments  Offered  in  Congress     339 

fining  the  second  to  a  choice  between  the  two  highest 
candidates."  He  also  favored  limiting  the  service  of  the 
chief  magistrate  to  a  single  term  of  either  four  or  six 
years.  The  consideration  of  the  proposition  was  urged 
upon  Congress  by  the  President  in  all  his  subsequent 
annual  messages.  But  years  of  continuous  recommenda- 
tion were  futile  of  result,  for  three  reasons,  said  Benton : 

**  I.  The  conservative  spirit  of  many,  who  are  unwilling 
under  any  circumstances  to  touch  an  existing  institution. 
2.  The  enemies  of  popular  elections,  who  deem  it  unsafe  to 
lodge  the  high  power  of  the  presidential  election  directly  in  the 
hands  of  the  people.  3.  The  intriguers,  who  wish  to  manage 
these  elections  for  their  own  benefit,  and  have  no  means  of 
doing  it  except  through  the  agency  of  intermediate  bodies," 

(the  most  potent  of  which  he  styled  "conventions,"  with 
all  the  evils  of  the  caucus  system  and  others  peculiar  to 
themselves).  These  objections  are  as  operative  to-day  as 
they  were  eighty  years  ago.  In  December,  1834,  Jack- 
son, in  his  annual  message,  again  recurred  to  the  topic 
and  expressed  his  conviction  that  the  best  interests  of  the 
country  would  be  promoted  by  the  adoption  of  some 
plan  for  a  dual  vote  by  the  people ;  and  he  renewed  the 
recommendation  in  his  final  message  in  December,  1836. 
Jackson's  interest  in  the  subject  stimulated  George  R. 
Gilmer,  of  Georgia,  to  move  a  resolution  in  the  House. 
Gilmer  was  made  chairman  of  a  special  committee,  which 
reported  an  amendment  with  the  features  embodied  in 
the  project  of  the  Senate  committee  of  nine,  in  1826- 
27.  It  combined  the  direct  choice  by  the  people  and 
the  second  popular  election,  in  a  case  of  a  tie,  of  the 
Benton  amendment,  with  a  provision  that,  in  case  of  the 
death  of  the  successful  candidate  at  the  second  popular 
election,  the  Vice-President  then  in  office  should  be  Presi- 
dent. In  case  of  a  tie  at  the  second  popular  election, 
the  President  was  to  be  chosen  by  the  House  and  the 


340  The  Electoral  System 

Vice-President  by  the  Senate.     But  this  proposition  was 
never  acted  upon. 

Benton  urged  the  reform  upon  the  Senate  in  Decem- 
ber, 1833,  in  a  speech  denouncing  the  general-ticket 
system  as  unfriendly  to  the  rights  of  the  people;  "it 
enables  the  majority  to  impress  the  votes  of  the  minority, 
and  that  ought  to  condemn  it  in  a  country  of  equal 
rights."  Tyler,  of  Virginia,  in  turn,  attacked  the  dis- 
trict system,  arguing  that  it  would  efface  "all  the  bound- 
ary lines  of  the  States,"  and  succeeded  in  tabling  Benton's 
resolution.  While  the  great  Virginians  of  1 800  deprecated 
the  general-ticket  system,  their  successors  in  Congress, 
Archer  and  Stevenson,  in  1826,  and  Tyler,  in  1833,  were 
its  staunch  defenders.  A  similar  amendment  was  offered 
in  the  Senate  in  1837  by  Allen,  of  Ohio,  and  was  referred 
to  a  committee  of  the  ablest  men  who  have  ever  sat  in 
that  body.  The  members  of  this  committee  were  Allen, 
Silas  Wright,  Calhoun,  Buchanan,  Webster,  Benton, 
Rives,  of  Virginia,  Crittenden,  of  Kentucky,  and  John 
M.  Clayton,  of  Delaware,  but  nothing  seems  ever  to  have 
been  done.  A  resolution  introduced  in  the  House  on 
December  13,  1836,  by  McComas,  of  Virginia,  which  was 
referred  to  a  committee,  differed  from  all  other  resolu- 
tions in  containing  a  provision  as  follows : 

**  If  no  person  have  such  majority,  or  if  the  person  having 
the  majority  of  the  whole  number  of  votes  given  shall  have 
died  before  the  counting  of  the  votes,  then  a  second  election 
shall  be  held  on  the  first  Monday  and  succeeding  Tuesday 
and  Wednesday  in  the  month  of  December  next  ensuing, 
which  shall  be  confined  to  the  persons  having  the  two  highest 
numbers  of  votes  at  the  preceding  election.  But  if  two  or 
more  persons  have  the  highest  or  an  equal  number  of  votes, 
then  to  the  persons  having  the  highest  number  of  votes;  pro- 
vided, however,  if  in  the  first  election  there  were  but  two 
persons  voted  for,  and  the  person  receiving  the  highest  num- 
ber of  votes  shall  have  died  before  the  counting  of  the  votes. 


Amendments  Offered  in  Congress     341 

then  in  the  second  election  the  choice  shall  not  be  confined 
to  the  persons  previously  voted  for;  but  any  person  may  be 
voted  for  who  may  be  otherwise  qualified  by  the  Constitution 
to  be  President  or  Vice-President  of  the  United  States  " 

and  so  on  to  a  third  election,  to  be  held  in  January. 

In  1844  Benton  offered  a  proposed  amendment  in  the 
Senate,  which  was  substantially  the  production  of  the 
Senate  committee  of  nine,  with  the  exception  that  it  dis- 
pensed with  an  election  in  the  House  of  Representatives 
in  the  event  of  no  choice  at  the  second  popular  election, 
and  substituted  a  provision  that  if  two  or  more  persons 
should  have  received  the  greatest  and  an  equal  number 
of  votes  at  the  second  popular  election,  then  the  person 
who  should  have  received  the  greatest  number  of  votes 
in  the  greatest  number  of  States  should  be  President. 
Benton  supported  his  plan  wnth  the  same  warmth  and 
earnestness  he  had  evinced  in  1823  and  1824.  The  will 
of  the  people  he  declared 

"was  liable  to  be  frustrated  in  the  election  of  their  chief 
officers  (and  that  at  no  less  than  three  different  stages  of  the 
canvass)  by  the  intervention  of  small  bodies  of  men  between 
themselves  and  the  object  of  their  choice.  First,  at  the 
beginning  of  the  process,  in  the  nomination  or  selection  of  can- 
didates. A  Congress  caucus  formerly,  and  a  national  conven- 
tion now,  govern  and  control  that  nomination ;  and  never  fail, 
when  they  choose,  to  find  pretexts  for  substituting  their  own 
will  for  that  of  the  people.  Then  a  body  of  electors,  to  re- 
ceive and  hold  the  electoral  votes,  and  who,  it  cannot  be 
doubted,  will  be  soon  expert  enough  to  find  reasons  for  a 
similar  substitution.  Then  the  House  of  Representatives  may 
come  in  at  the  conclusion,  to  do  as  they  have  done  heretofore, 
and  set  the  will  of  the  people  at  absolute  defiance." 

The  plan  would  effectually  remedy  all  these  evils  and 
rescue  the  voters  from  the  tyranny  of  conventions  and 
electors, — a  plan  that  had  been  urged  by  eminent  states- 


342  The  Electoral  System 

men  of  an  earlier  epoch  and  had  been  **  received  with 
great  favor  by  the  Senate  and  the  country"  at  the 
time  it  was  first  reported.  He  declared  that  he  had 
never  attended  a  nominating  caucus  or  convention,  and 
never  intended  to  attend  one.  He  had  seen  the  last 
Congress  caucus  in  1824,  and  "never  wished  to  see 
another,  or  hear  of  another;  he  had  seen  the  national 
convention  of  1844,  and  never  wished  to  see  another." 
And  while  he  should  support  the  nominations  of  the  last 
convention,  he  added  with  an  optimism  which  interven- 
ing events  have  made  less  intelligible  that  he  "hoped  to 
see  such  conventions  rendered  unnecessary  before  the 
recurrence  of  another  presidential  election." 

When  the  Benton  amendment  was  first  proposed,  the 
caucus  system  of  nominations  was  nearing  extinction, 
and  the  convention  system  was  an  embryo.  But  for  this 
fact  it  would  seem  extraordinary  that  such  a  master  of 
the  convention  method  as  Van  Buren  should  advocate  a 
plan  of  election  that  would  render  nominating  bodies 
unnecessary.  In  the  evolution  of  American  politics,  the 
convention  soon  came  to  be  recognized  as  an  organ  of 
the  highest  consequence  for  ascertaining  the  will  of  the 
people,  and  however  imperfect  the  instrument,  there  is 
as  yet  no  evidence  of  a  strong  popular  desire  to  abandon 
it.  Inasmuch  as  constitutional  development  should  pro- 
ceed on  parallel  lines  with  institutional  development,  it 
would  be  a  vital  mistake  to  incorporate  in  the  organic 
law  either  a  positive  or  negative  provision  that  would 
hinder  the  free  play  of  natural  political  forces.  Benton's 
plan  for  a  dual  popular  election  has  been  revived  but 
once  since  his  death.  During  the  debates  in  Congress 
upon  the  Civil  War  amendments,  Sumner  offered  an 
amendment,  of  which  he  said  : 

"  Such  an  amendment  has  not  appeared  in  this  discussion, 
though  it  is  not  unknown  in  this  chamber,  for  distinguished 


Amendments  Offered  in  Congress     343 

Senators  who  once  occupied  these  seats  have  more  than  once 
advocated  it  —  I  mean  an  artiendment  providing  for  the  elec- 
tion of  President  directly  by  the  people,  without  the  interven- 
tion of  electoral  colleges.  Such  an  amendment  would  give 
every  individual  voter,  wherever  he  might  be,  a  positive  weight 
in  the  election.  It  would  give  minorities  in  distant  States  an 
opportunity  of  being  heard  in  determining  who  shall  be  chief 
magistrate." 

Although  the  proposition  then  before  the  Senate  was 
debated,  it  never  reached  a  vote,  and  Sumner's  sugges- 
tion fell  with  it.  Sumner  subsequently  introduced  an 
amendment  to  supersede  the  electoral  system,  the  repre- 
sentative features  of  which  were  as  follows: 

The  regular  presidential  election  is  to  be  held  on  the 
first  Monday  of  April,  and  the  result  in  each  State  and 
Territory  is  to  be  certified  and  forwarded  to  the  seat  of 
government  as  Congress  by  law  may  direct.  On  the 
Tuesday  next  succeeding  the  third  Monday  in  May  the 
returns  shall  be  opened  in  joint  convention  of  the  two 
Houses  of  Congress,  and  the  person  having  a  majority  of 
the  votes  cast  shall  be  President.  If  no  person  have 
such  majority,  or  the  person  having  it  decline  the  office 
or  die  before  the  counting  of  the  vote,  then  the  presi- 
dent of  the  Senate  shall  so  proclaim,  and  the  proceedings 
shall  be  officially  published,  and  another  election  shall  be 
held  on  the  following  second  Tuesday  of  October,  at 
which  the  three  persons  having  the  highest  number  of 
votes  at  the  preceding  April  election  shall  be  voted  for 
by  the  people.  These  votes  shall  be  counted  in  Con- 
gress on  the  third  Tuesday  in  December  following,  and 
the  result  proclaimed.  In  case  of  a  vacancy  occurring  in 
the  office  of  the  President,  the  members  of  Congress  in 
joint  convention  shall  proceed  to  elect  by  viva  voce  vote 
a  President  to  fill  such  vacancy,  each  member  having  one 
vote,  and  a  majority  being  requisite  for  election.     The 


344  The  Electoral  System 

President  shall  not  be  eligible  for  re-election;   and  the 
office  of  Vice-President  shall  be  abolished.' 

On  January  21,  1875,  Morton,  addressing  the  Senate 
upon  the  amendment  which  he  had  offered  in  that  body 
in  the  spring  of  1874,  said  that  its  purpose  was  to  bring 
the  election  home  to  the  people,  as  well  as  to  avoid  the 
dangers  of  the  existing  method.  No  more  important 
question  could  be  considered  by  the  Senate: 

"  In  my  opinion  great  dangers  impend,  owing  to  the  imper- 
fection of  the  present  system  of  electing.  .  .  .  Trouble  has 
been  averted  rtierely  by  a  series  of  happy  accidents,  but  we  can- 
not hope  that  these  happy  accidents  will  continue  to  occur. 
.  .  .  The  present  plan  originated  in  a  profound  distrust  of  the 
people.  It  placed  the  appointment  of  electors  absolutely  under 
the  control  of  State  Legislatures.  The  States  could  not  by  their 
constitutions  control  or  in  any  manner  change  the  appointment 
of  electors.  The  power  of  a  Legislature  to  appoint  electors  is 
not  conferred  by  the  State  constitution,  but  is  conferred  by  the 
Constitution  of  the  United  States,  so  that  it  is  not  in  the  power 
of  a  State  constitution  to  take  from  the  Legislature  the  power 
to  appoint  electors  in  any  way  that  that  Legislature  may  see 
proper.  The  Legislature  may  repeal  any  day  the  law  by  which 
electors  are  elected  by  the  people,  and  may  direct  them  to  be 
elected  by  joint  ballot  of  the  two  houses;  or  may  authorize 
the  governor  of  the  State  or  its  Supreme  Court  to  appoint 
them." 

One  difficulty  of  the  electoral  system  was  that  Congress 

^  For  a  fuller  account  of  this  amendment,  see  an  article  in  117  North 
Amer.  Review  (October,  1873),  by  R.  H.  Dana,  Jr.  Mr.  Dana  seems  to 
favor  some  such  plan  as  is  advocated  in  this  book,  "  of  dividing  the  presi- 
dential vote  of  a  State  according  to  the  popular  division  manifested  at  the 
polls,"  which  "might  be  accomplished  through  the  principle  of  minority 
representation.  The  footings  of  the  votes  of  the  two  parties  on  election 
day  would  show  what  proportion  of  the  presidential  votes  of  the  State  each 
party  would  be  entitled  to." 


Amendments  Offered  in  Congress     345 

has  no  power  to  determine  whether  an  election  has  been 
properly  held  or  not :  ^ 

"  No  contested  election  of  electors  can  be  determined  by 
the  Congress  of  the  United  States,  because  the  Constitution 
has  placed  that  election  absolutely  and  entirely  with  the  States. 
If  they  make  no  provision  for  cases  of  contested  election, 
Congress  cannot  do  it.  All  its  power  is  to  fix  the  time  when 
the  electors  shall  be  chosen  by  the  States  and  to  determine  the 
day  when  they  shall  come  together  as  electors  to  cast  their 
votes,  which  shall  be  the  same  day  in  all  the  States.  The 
States  have  failed  to  make  provision  for  contesting  the  elec- 
tion of  electors.  Though  the  election  may  be  distinguished 
by  fraud,  notorious  fraud,  by  violence,  by  tumult,  yet  there  is 
no  method  for  contesting  it;  no  State  has  passed  a  law  for  that 
purpose ;  .  .  .  there  is  no  time  for  a  contest,  even  if  the 
States  were  disposed  to  enact  such  a  law.  Congress,  in  1792, 
in  effect  prohibited  any  contest  either  by  the  State  or  by 
Congress.  Electors  cannot  be  called  together  again  after  they 
have  voted.  They  vote  by  ballot  under  the  Constitution;  the 
vote  is  sealed,  and  sent  to  the  president  of  the  Senate,  and  is 
not  opened  until  it  is  counted  in  the  presence  of  the  two 
Houses.  ...  It  seems  never  to  have  occurred  to  the 
members  of  the  convention  that  there  could  be  two  sets  of 
electors  or  that  there  would  be  fraud  or  corruption  or  any 
reason  why  votes  of  electors  should  be  set  aside." 

He  argued  also  that  the  theory  of  the  electoral  college 
had  utterly  failed : 

"  It  has  turned  out  in  practice  that  the  electors  are  pledged 
in  advance  to  vote  for  a  particular  candidate,  ...  a 
pledge  that  has  never  been  violated,  and  the  violation  of  which 
would  bring  upon  the  offending  party  all  the  indignation  that 
society  could  invent.  .  .  .  Therefore  the  theory  is  a  total 
failure.     .     .     .     The  reasons  for  the  electoral  college  have 

'  Morton  consistently  held  to  these  views  in  his  opinions  as  a  member  of 
the  Electoral  Commission  of  1877. 


346  The  Electoral  System 

gone.  Why  not  let  the  people  vote  themselves  for  the  presi- 
dential candidates,  instead  of  voting  for  electors  who  are 
pledged  to  do  the  same  thing  ?  '  N 

In  instancing  some  of  the  dangers  and  difficulties  of 
the  system,  he  said  that,  by  law,  w^hen  electors  have  died 
since  their  election  or  failed  to  attend,  the  others  may 
fill  their  vacancies : 

"  In  the  case  of  Texas  at  the  last  election  (1872),  when  the 
electors  met  to  vote,  four  were  absent,  just  one-half  the  whole 
number.  The  other  four  supplied  the  vacancies  by  election. 
Suppose  there  should  be  five  in  favor  of  one  candidate,  and 
five  in  favor  of  another,  and  one  elector  dies  ?  Then  one 
five  will  have  the  majority  over  the  other,  and  they  can  fill  the 
vacancy  and  they  can  thus  secure  a  majority  in  the  electoral 
college." 

While  Morton  argued  for  the  district  system,  he  was 
obliged  to  concede  its  limitations : 

**  By  the  election  by  districts  you  do  not  bring  the  vote  ab- 
solutely home  to  the  people,  as  you  would  by  a  vote  as  one 
community,  but  you  come  as  near  to  it  as  possible.  .  .  . 
These  districts  may  be  gerrymandered,  as  they  are  for  Con- 
gress. That  has  been  done.  It  is  an  evil.  You  cannot  correct 
it  altogether." 

Under  the  general-ticket  system  **no  man  can  vote  unless 
he  has  a  party  in  the  State  large  enough  to  hold  a  con- 
vention and  put  an  electoral  ticket  in  the  field."  Sup- 
pose, he  continued,  the  election  of  1872  had  depended 
upon  the  vote  of  Louisiana  or  Arkansas  or  Texas? 

*  *  Would  we  not  in  all  probability  have  been  involved  in 
revolution  ?  ...  It  was  a  matter  of  congratulation  to 
both  Democrats  and  Republicans  that  Grant's  majority  was 
so  large  as  to  make  the  vote  of  Louisiana  or  Arkansas  and  of 
Texas  unimportant.  Dispense  with  the  requirement  of  a  ma- 
jority and  adopt  the  plurality  system,  and  avoid  an  election  by 


Amendments  Offered  in  Congress     347 

the  House  altogether.  The  plurality  rule  is  adopted  by  all  the 
States  except  three  in  the  election  of  State  officers,  .  .  . 
and  by  all  in  regard  to  the  election  of  members  of  Congress. 
.  .  .  It  has  worked  well  in  the  States  and  no  State  now 
proposes  to  go  back  from  the  plurality  to  the  majority  system." 

To  an  election  of  the  President  by  the  House  of  Repre- 
sentatives Morton  had  long  been  an  opponent,  nor  did 
he  omit  opportunity  to  show  how  unjust  such  a  form  of 
election  was.  Under  the  existing  apportionment,  each 
State  having  one  vote,  forty-five  members  out  of  a  total 
of  two  hundred  and  ninety-two  in  the  House  could  elect 
the  chief  executive.  He  alluded  to  the  election  of  1825 
and  asked  whether  the  Government  could  stand  the 
strain  of  another  election  in  the  House.  Referring  to 
that  part  of  the  amendment  providing  a  tribunal  for  the 
decision  of  contested  elections,  Morton  said  that  it  had 
been  "a  subject  of  grave  consideration  in  the  commit- 
tee." Some  were  in  favor  of  constituting  the  Supreme 
Court  the  tribunal,  others  wished  to  clothe  the  circuit 
courts,  or  the  district  courts,  of  the  United  States  with 
adequate  powers;  others  thought  that  a  special  tribunal 
should  be  created  by  Congress.  "It  was  then  thought 
better  to  place  the  whole  matter  in  the  decision  of  Con- 
gress. ...  If  we  should  put  any  special  tribunal 
into  the  Constitution  it  might  not  work  well  and  it 
might  be  difficult  to  change  it."  Thurman  insisted  that 
there  should  be  provision  for  a  tribunal  in  the  fundamen- 
tal law,  so  that  every  party  should  be  compelled  to  obey 
its  behests. 

In  conclusion,  Morton  said : 

"  For  more  than  seventy  years  attempts  have  been  made  at 
different  times  to  change  the  Constitution  so  as  to  avoid  some 
of  these  dangers.  Amendments  have  passed  the  Senate  and 
the  House  four  times  by  a  two-thirds  majority  to  avoid  some 


348  The  Electoral  System 

of  these  evils,  and  yet  finally  failed.  .  .  .  The  remedy 
proposed  is  not  new,  it  is  almost  as  old  as  the  Constitution. 
Seventy  years  ago  some  of  the  ablest  men  in  the  Senate  of  the 
United  States  foresaw  these  dangers." 

After  discussion  of  the  proposed  amendment  by  Thur- 
man,  Edmunds,  Conkling,  Anthony,  and  others,  imme- 
diate interest  in  its  passage  seems  to  have  subsided, 
perhaps  for  the  reason  that  Morton  succeeded  in  pressing 
his  bill  to  regulate  the  electoral  count  to  a  favorable 
vote,  which  was  reached  in  the  Senate  on  February  25, 
1875. 

Morton  reintroduced  his  amendment  in  the  Senate  on 
December  4,  1876,  but,  in  view  of  the  excitement  of  the 
time  and  the  urgency  of  securing  some  temporary  method 
of  counting  the  electoral  vote  upon  which  the  discordant 
Houses  might  agree,  it  failed  to  elicit  much  attention; 
and  the  early  introduction  of  the  Electoral  Commission 
bill  rendered  debate  upon  it  impracticable.  As  soon  as 
the  presidential  succession  dispute  was  decided,  he  again 
undertook  the  advocacy  of  his  remedy.  In  the  North 
American  Review  in  May,  1877,  he  declared:  "Experi- 
ence, as  well  as  reason,  now  suggests  that  the  rubbish  of 
the  electoral  college  be  brushed  away  entirely,"  and  in  a 
later  article  in  the  same  Review,^  published  in  July,  1877, 
he  repeated  the  arguments  from  his  various  speeches  in 
the  Senate.  His  death  in  the  prime  of  life,  in  Novem- 
ber, 1877,  from  a  disease  the  inroads  of  which  his  iron 
will  had  resisted  for  years,  deprived  the  cause  of  presi- 
dential electoral  reform  of  its  most  assiduous  and  con- 
vincing exponent. 

The  full  text  of  the  Morton  amendment  is  as  follows : 
"  Resolved^  by  the  Senate  and  House  of  Representatives  of 
the  United    States  of  America,  in  Congress   assembled  (two 
thirds  of  each  House  concurring  therein),  That  the  following 
^\2t,N.  A.  R.,  68. 


Amendments  Offered  in  Congress     349 

article  is  hereby  proposed  as  an  amendment  to  the  Constitu- 
tion of  the  United  States,  and  when  ratified  by  the  Legislatures 
of  three  fourths  of  the  several  States,  shall  be  valid,  to  all 
intents  and  purposes,  as  a  part  of  the  Constitution,  to  wit: 

"article 

"  I.  The  President  and  Vice-President  shall  be  elected  by 
the  direct  vote  of  the  people  in  the  manner  following:  Each 
State  shall  be  divided  into  districts,  equal  in  number  to  the 
number  of  Representatives  to  which  the  State  may  be  entitled 
in  the  Congress,  to  be  composed  of  contiguous  territory,  and 
to  be  as  nearly  equal  in  population  as  may  be;  and  the  person 
having  the  highest  number  of  votes  in  each  district  for  Presi- 
dent shall  receive  the  vote  of  that  district,  which  shall  count 
one  presidential  vote. 

**  II.  The  person  having  the  highest  number  of  votes  for 
President  in  a  State  shall  receive  two  presidential  votes  from 
the  State  at  large. 

"  III.  The  person  having  the  highest  number  of  presiden- 
tial votes  in  the  United  States  shall  be  President. 

"  IV.  If  two  persons  have  the  same  number  of  votes  in  any 
State,  it  being  the  highest  number,  they  shall  receive  each  one 
presidential  vote  from  the  State  at  large;  and  if  more  than 
two  persons  shall  have  each  the  same  number  of  votes  in  any 
State,  it  being  the  highest  number,  no  presidential  vote  shall 
be  counted  from  the  State  at  large.  If  more  persons  than  one 
shall  have  the  same  number  of  votes,  it  being  the  highest 
number  in  any  district,  no  presidential  vote  shall  be  counted 
from  that  district. 

"  V.  The  foregoing  provisions  shall  apply  to  the  election  of 
Vice-President. 

"  VI.  The  Congress  shall  have  power  to  provide  for  holding 
and  conducting  the  elections  of  President  and  Vice-President, 
and  to  establish  tribunals  for  the  decision  of  such  elections  as 
may  be  contested. 

"  VII.  The  States  may  be  divided  into  districts  by  the 
Legislatures  thereof,  but  the  Congress  may  at  any  time  by  law 
make  or  alter  the  same." 


350  The  Electoral  System 

This  amendment  is  defective  in  several  respects.  The 
word  ''people,"  which  appears  only  in  the  preamble  to 
the  Constitution,  is  inexact.  The  vote  is  not  by  the 
people,  but  by  citizens  upon  whom  the  privilege  of 
suffrage  is  conferred.  It  would  have  been  wiser  to  define 
the  qualifications  of  citizens  entitled  to  vote  directly  for 
the  President  and  Vice-President.  Waiving  for  the  pres- 
ent the  question  whether  the  district  system  should  be 
adopted,  I  think  the  provision  as  to  districts  inadequate. 
The  Benton  amendment  is,  in  this  particular,  better,  in 
limiting  the  possibilities  of  "gerrymandering."  This 
differs  again  from  Madison's  plan  to  forbid  alteration  of 
the  districts  within  a  definite  period  previous  to  the  elec- 
tion of  President.  The  partial  disfranchisement  of  a 
great  commonwealth  might  happen  under  the  Morton 
scheme  should  more  than  two  candidates  have  the  highest 
and  an  equal  number  of  the  presidential  votes  of  a  State, 
as  the  State  has  only  two  presidential  votes  at  large  and 
cannot  divide  these  two  among  more  than  two  candi- 
dates. This  puts  a  penalty  upon  intelligent  suffrage, — 
for  a  close  State  is  likely  to  be  an  intelligent  one, — and 
unjustly  limits  its  voting  ratio.  Nor  does  the  amend- 
ment contain  any  clause  providing  what  shall  happen  in 
the  event  of  the  death  or  disability  of  the  President- 
elect. The  sixth  clause  is  uncertainly  phrased:  "The 
Congress  shall  have  the  power  to  provide  for  holding 
and  conducting  elections,  and  to  establish  tribunals  for 
the  decision  of  such  elections  as  may  be  contested." 
The  power  to  provide  for  holding  and  conducting  elec- 
tions may  be  broadly  or  narrowly  construed,  but  it  is 
questionable  whether  this  power  includes  the  ascertain- 
ment of  results,  and  in  this  respect  the  present  Consti- 
tution is  wofully  deficient.  Nor  does  such  ascertainment 
devolve  upon  the  tribunals  which  Congress  is  empowered 
to  create,  for  these  are  merely  for  the  decision  of  con- 
tested elections.     In  some  particulars  the  Benton  amend- 


Amendments  Offered  in  Congress     351 

ment  is  more  specific,  for  Benton  required  the  result  of 
the  vote  in  the  State  to  be  certified  to  the  State  governor, 
its  two  Senators,  and  the  president  of  the  Senate.  The 
conduct  of  elections,  including  the  canvass  and  the  cer- 
tification of  the  votes,  should  either  be  explicitly  lodged 
in  the  State  or  in  Congress.  Benton  proposed  to  reserve 
it  to  the  State.  His  amendment  is  superior  in  prescrib- 
ing the  qualifications  of  the  persons  exercising  the  right 
to  vote  for  President.  The  chief  criticism  upon  both 
proposals  is  that  they  fail  to  provide  definite  and  precise 
means  for  the  ascertainment  of  the  State  canvass  and  for 
a  final  determination  of  all  questions  arising  upon  the 
electoral  count. 

An  amendment  embodying  some  of  the  principles  of 
the  Hare  plan  for  minority  representation  was  formulated 
by  Levi  S.  Maish,  of  Pennsylvania,  and  offered  by  him  in 
the  House,  and  by  Senator  Charles  R.  Buckalew,  of  that 
State,  in  the  Senate,  in  February,  1877.  This  propo- 
sition was  elaborately  discussed  by  Buckalew  in  an  article 
in  the  North  Americaji  Review.^  The  main  features  of  the 
Maish  plan  are  as  follows : 

**  The  citizens  of  each  State  who  shall  be  qualified  to  vote 
for  Representatives  in  Congress  shall  cast  their  votes  for  can- 
didates for  President  and  Vice-President  by  ballot;  and 
proper  returns  of  the  votes  so  cast  shall  be  made,  under  seal, 
within  ten  days,  to  the  secretary  of  State  or  other  officer  law- 
fully performing  the  duties  of  such  secretary  in  the  govern- 
ment of  the  State,  by  whom  the  said  returns  shall  be  publicly 
opened  in  the  presence  of  the  chief  executive  magistrate  of  the 
State,  and  of  the  chief  justice  or  judge  of  the  highest  court 
thereof;  and  the  said  secretary,  chief  magistrate,  and  judge 
shall  assign  to  each  candidate  voted  for,  by  a  sufficient  num- 
ber of  citizens,  a  proportionate  part  of  the  electoral  votes  to 
which  the  State  shall  be  entitled,  in  manner  following,  that  is 
to  say:  they  shall  divide  the  whole  number  of  votes  returned 
1 124  N.  A.  R.,  163. 


352  The  Electoral  System 

by  the  whole  number  of  the  State's  electoral  vote,  and  the  re- 
sulting quotient  shall  be  the  electoral  ratio  for  the  State,  and 
shall  assign  to  candidates  voted  for  one  electoral  vote  for  each 
ratio  of  popular  votes  received  by  them  respectively,  and,  if 
necessary,  additional  electoral  votes  for  successive  largest 
fractions  of  a  ratio  shall  be  assigned  to  candidates  voted  for, 
until  the  whole  number  of  the  electoral  votes  of  the  State  shall 
be  distributed;  and  the  said  officers  shall  thereupon  make  up 
and  certify  at  least  three  general  returns,  comprising  the  popu- 
lar vote  by  counties,  parishes,  or  other  principal  divisions  of 
the  State,  and  their  apportionment  of  electoral  votes  as  afore- 
said, and  shall  transmit  two  thereof,  under  seal,  to  the  seat  of 
government  of  the  United  States,  one  directed  to  the  president 
of  the  Senate  and  one  to  the  Speaker  of  the  House  of  Repre- 
sentatives, and  a  third  unsealed  return  shall  be  forthwith  filed 
by  the  said  secretary  in  his  office,  be  recorded  therein,  and  be 
at  all  times  open  to  inspection." 

This  amendment,  Buckalew  explained,  would  have  these 
important  results: 

"  I.  It  will  very  greatly  reduce,  in  fact,  almost  extinguish, 
the  chance  of  a  disputed  election,  by  causing  the  electoral  vote 
of  the  State  to  be  very  nearly  a  reflex  of  the  popular  vote,  by 
confining  the  effect  of  fraud  and  other  sinister  influences 
within  narrow  limits,  and  by  withdrawing  the  compact,  undi- 
vided power  of  any  one  State  from  the  contest.  Giving  a  just 
allotment  of  electoral  votes  to  candidates,  not  greatly  too  many 
or  too  few,  it  conforms  to  the  popular  sense  of  justice  and  tends 
to  allay  passion  and  prevent  controversy.  It  excludes  the 
temptation  to  falsify  or  manipulate  election  returns,  by  which 
the  whole  vote  of  the  state  may  be  wielded  in  the  interest  of  a 
party.  Under  it  there  would  be  no  rival  electoral  colleges,  or 
double  returns  of  electoral  votes,  and  pivotal  States,  inviting 
to  profuse  money  expenditure,  to  fraud  and  to  false  returns, 
would  no  longer  be  known  as  a  conspicuous  feature  of  presi- 
dential contests. 

"2.   It  will  render  almost  impossible  the  election  of  a  mi- 


Amendments  Offered  in  Congress     353 

nority  candidate  in  a  contest  between  two,  and  will  in  many- 
cases  prevent  a  plurality  candidate  from  receiving  an  unjust 
electoral  vote,  and  often  from  being  improperly  returned  to 
the  House  of  Representatives  as  one  of  the  three  persons  from 
whom  a  choice  is  to  be  made,  in  cases  where  the  power  of 
choice  shall  devolve  upon  that  house.  It  will  secure  justice 
by  insuring  a  fair  representation  of  the  people,  and  applying 
the  majority  rule  to  the  electoral  instead  of  the  popular  vote; 
in  other  words,  all  the  people  will  be  represented  by  electoral 
votes,  and  the  majority  principle  will  be  properly  applied  when 
the  general  returns  of  those  electoral  votes  shall  be  subjected 
to  computation.  Popular  disfranchisement  within  a  State  will 
be  swept  away,  while  the  supporters  of  no  candidate  will  con- 
trol more  than  their  due  share  of  electoral  power. 

"3.  It  will  very  greatly  discourage  and  prevent  unfairness 
and  fraud  in  elections,  by  excluding  the  motives  which  pro- 
duce them.  In  this  respect  its  superiority  to  other  plans  of 
amendment  is  conspicuous  and  unquestionable.  Assuming  a 
ratio  of  thirty  thousand  for  an  electoral  vote,  a  fraudulent  vote 
of  ten  thousand  would  mean  one  third  of  an  electoral  vote, — 
in  other  words,  would  mean  nothing  as  to  results, — instead  of 
meaning,  as  it  now  does  in  many  cases,  the  balance  of  power 
in  a  State,  and  the  control  of  its  whole  electoral  vote!  In  a 
State  like  New  York  or  Pennsylvania,  a  fraudulent  vote  of 
even  thirty  or  forty  thousand  would  affect  but  one  electoral 
vote  out  of  thirty  or  forty  cast  by  the  State,  instead  of  trans- 
ferring all  those  thirty  or  forty  votes  from  one  candidate  to 
another.  Speaking  within  bounds,  the  effect  of  any  common 
fraud  in  presidential  elections  would  become  inappreciable, 
and  the  motive  for  committing  such  fraud  would  be  wholly 
removed.  Could  there  be  a  more  complete  device  for  purify- 
ing and  improving  elections  than  this,  or  one  more  impera- 
tively demanded  by  the  necessities  of  the  times  ?  District 
voting  for  electors  would  not  extirpate  this  evil  of  corrupt 
elections,  for  the  balance  of  power  vote  in  each  district  would 
be  the  object  of  money  expenditure  and  evil  influence  as  we 
already  have  them  in  congressional  districts.     Ten  thousand 

foul  votes  in  a  State   might  control  half  a  dozen  or  more 
23 


354  The  Electoral  System 

districts,  while  they  would  be  entirely  lost  when  counted  in 
the  aggregate  or  total  vote  of  the  State." 

The  disputed  count  of  1877  emphasized  so  sharply  the 
defects  in  the  present  system  that  a  number  of  amend- 
ments were  proposed  in  the  special  session  of  Congress 
which  commenced  on  October  15,  1877,  and  in  the  next 
succeeding  regular  session.  Nearly  all  these  amendments 
aimed  to  dispense  with  presidential  electors,  and  two  of 
them,  following  the  Maish  plan,  proposed  to  apportion 
the  presidential  votes  of  each  State  among  the  respective 
candidates  according  to  the  ratio  of  the  popular  vote  for 
each.  Representative  Springer,  of  Illinois,  one  of  the 
ablest  advocates  in  the  House  of  the  Electoral  Commis- 
sion bill  of  1877  and  a  staunch  believer  in  the  doctrine 
that  the  Houses  in  joint  meeting  were  clothed  with  the 
power  to  count  the  electoral  votes,  offered  an  amendment 
in  the  House  on  October  29,  1877,  which  extended  the 
presidential  term  to  six  years,  and  deprived  the  President 
of  immediate  re-eligibility.  This  plan,  if  carried  into  effect, 
would  have  abridged  the  influence  of  the  small  States, 
for  it  provided  that  States  having  but  one  Representative 
in  the  House  should  have  but  one  presidential  vote, 
and  that  States  entitled  to  only  two  such  Representatives 
should  have  three  votes.  The  governor,  the  secretary  of 
State,  and  the  chief  justice  of  the  highest  appellate  court 
in  each  State  were  to  be  the  State  canvassers,  but  their 
powers  were  to  be  ministerial  only.  The  Senate  and  the 
House  of  Representatives  were  to  meet  in  joint  convention 
in  the  hall  of  the  House  on  the  third  Monday  of  January 
succeeding  each  presidential  election;  the  president  of 
the  Senate  was  to  preside,  unless  he  was  the  recipient  of 
a  majority  of  the  presidential  votes  of  any  State,  in  which 
event  the  Speaker  of  the  House  was  to  assume  that  office, 
and  if  he,  for  like  reason,  was  disqualified,  the  "joint 
convention"  was  to  choose  a  presiding  ofificer;  and  the 


Amendments  Offered  in  Congress     355 

"joint  convention"  was  made  **the  judge  of  the  election, 
returns,  and  qualifications  of  the  persons  who  shall  be 
President  and  Vice-President."  Obviously  the  small 
States  would  never  make  the  sacrifice  of  prestige  this 
amendment  would  require.  But  the  chief  defect  in  the 
Springer  proposition  is  that  it  overturns  the  theory  of 
the  Constitution,  by  vesting  the  "joint  convention"  with 
powers  similar  to  those  which  the  two  Houses  now  enjoy 
as  to  the  election  of  their  own  members.  That  the  "joint 
meeting"  possessed  such  authority  was  cogently  urged  in 
the  Louisiana  case  before  the  Electoral  Commission,  but 
Mr.  Justice  Bradley  trenchantly  exposed  the  utter  weak- 
ness of  the  claim. 

Riddle,  of  Tennessee,  proposed  an  amendment  having 
some  of  the  features  of  the  amendments  offered  in  1823. 
There  was  to  be  a  direct  election  by  the  people  and  a 
majority  was  required  for  a  choice.  If  a  majority  were 
not  obtained,  a  second  election  was  to  be  held  within 
two  months  after  the  first  election,  when  the  choice  was 
to  be  narrowed  to  the  two  highest  names  upon  the  list. 
If  no  choice  was  then  effected  owing  to  a  tie  between 
the  rival  candidates  at  the  second  election,  the  two 
Houses  of  Congress  in  joint  convention,  each  member 
having  one  vote,  were  to  elect. 

An  amendment  of  interest  was  reported  in  May,  1878, 
by  Representative  Southard,  of  Ohio,  from  a  committee 
of  the  House  on  the  state  of  the  law  upon  the  subject 
of  the  electoral  count.  Two  reports  were  presented 
by  this  committee  to  the  House.  The  majority  report 
contains  a  draft  of  a  proposed  amendment  embodying 
the  principle  of  the  Maish  plan.  The  report  declares 
that  not  only  have  the  reasons  failed  which  were  origi- 
nally urged  in  favor  of  the  electoral  system,  but  that 

"  difficulties  have  arisen,  unforeseen  and  unprovided  for, 
which  have  put  us  in  great  peril  more  than  once.    .    .    .    The 


35^  The  Electoral  System 

Government  has  no  unquestioned  remedy  for  a  failure  to  ap- 
point electors,  nor  for  their  failure  to  act,  nor  for  fraud  in 
the  election,  and  there  is  no  mode  for  contesting  elections;  if 
the  electors  are  chosen  on  a  wrong  day,  if  they  vote  on  the 
wrong  day,  if  their  certificate  is  defective,  if  their  vote  be 
cast  before  the  State  is  in  the  Union,  if  there  are  conflicting 
certificates  from  the  same  State,  if  the  persons  voted  for  were 
not  citizens,  if  the  electors  were  officers  of  the  Government,  if 
a  certificate  contains  too  many  electoral  votes,  for  none  of 
these  cases  has  any  competent  provision  been  made  by  law. 
The  congressional  records  are  full  of  angry  debate  on  all  these 
questions.  The  difficulty  began  in  1805  upon  the  vote  of 
Massachusetts;  it  occurred  again  in  181 7  upon  the  vote  of 
Indiana,  in  1821  upon  the  vote  of  Missouri,  in  1829  upon  the 
votes  of  Virginia  and  several  other  States,  in  1837  upon  the 
vote  of  Michigan,  in  1857  upon  the  vote  of  Wisconsin,  in 
1865  upon  the  vote  of  Nevada,  in  1869  upon  the  vote  of 
Georgia,  in  1873  upon  the  votes  of  Georgia,  Mississippi,  Texas, 
Arkansas,  and  Louisiana,  in  1877  upon  the  votes  of  Louisiana, 
Florida,  South  Carolina,  and  Oregon."  ^ 

The  report  starts  with  the  theory  of  the  independence 
and  equality  in  relation  to  their  ow^n  exclusive  affairs  of 
all  the  States  in  the  Union.  While  it  accepts  the  com- 
promise between  small  and  large  States  upon  which  the 
Government  was  organized,  it  refutes  the  notion  that  a 
vote  by  a  State  en  bloc  is  essential  to  the  maintenance  of 
statehood.     It  truthfully  says: 

**  It  was  not  intended  by  the  framers  of  the  Constitution, 
nor  does  that  instrument  require  —  no  matter  whether  the 
electors  be  appointed  by  the  Legislature,  people,  or  otherwise — 
that  the  State,  as  an  entity,  should  cast  the  electoral  vote  in 
solido  for  a  particular  candidate.  The  electors,  when  ap- 
pointed, were  to  be  perfectly  free  each  to  exercise  his  judg- 

^  The  act  of  February  3,  1887,  which  was  passed  nine  years  after  the  date 
of  this  report,  prescribes,  as  I  have  heretofore  shown,  no  renfiedy  for  any 
of  these  difficulties. 


Amendments  Offered  in  Congress     357 

ment  and  discretion  in  casting  his  vote.  Under  such  circum- 
stances, it  would  be  unreasonable  to  infer  that  the  electors 
would  be  unanimous  in  their  choice.  The  reverse  was  in- 
tended and  expected,  and  in  this  freedom  of  action  the  merit 
of  the  system  was  supposed  to  rest." 

The  adoption  of  the  general-ticket  system,  like  the  idea 
of  the  balance  of  power  in  Europe,  had  its  origin  in  self- 
preservation,  for  its  use  by  one  or  more  of  the  larger 
States  was  a  coercive  influence  upon  all  the  others,  unless 
they  wished  to  sacrifice  their  representative  weight.  No 
one  deplored  its  spread  more  than  Madison,  and  while 
Madison,  upon  the  theory  of  "retributive  justice,"  reluc- 
tantly urged  the  Legislature  of  Virginia  in  1800  to  adopt 
the  general-ticket  system,  John  Nicholas,  in  the  House 
of  Representatives  in  March  of  the  same  year,  offered  his 
proposed  amendment  making  the  district  system  com- 
pulsory. As  the  report  says,  "the  result  of  the  election 
is  under  the  control  of  the  large  cities,  such  as  New  York 
and  Philadelphia  and  Chicago,  the  very  places  where 
fraud  is  most  easily  perpetrated,  where  the  temptations 
to  it  most  abound." 

The  minority  report  is  filled  with  vague  alarm  at  the 
so-called  centralizing  tendency  of  the  majority  view;  but 
the  alarm  is  groundless,  for  it  is  as  nearly  susceptible  of 
demonstration  as  any  political  fact  can  be,  that  the  plan 
of  apportionment  of  the  electoral  votes  of  a  State  among 
the  voters  of  that  State  as  first  proposed  by  Maish,  advo- 
cated by  Buckalew,  and  favored  by  the  majority  report 
of  the  House  committee,  most  completely  guarantees 
the  absolute  independence  and  integrity  of  the  State. 
The  fallacious  notion  of  the  minority,  a  fallacy  repeatedly 
urged,  and  as  often  exposed,  in  Congress,  is  that  a  ma- 
jority of  the  voters  of  a  commonwealth  represent  the 
State.     The  minority  say  : 

"  The  right  to  speak  by  a  majority,  when  its  fundamental 


35^  The  Electoral  System 

laws  permit,  is  a  right  inherent  in  every  republic.  This  plan 
takes  away  from  these  republics,  the  States,  this  right  to  speak 
by  their  majorities^  and  confers  upon  the  United  States  the  right 
to  say  by  a  majority  of  the  whole  who  shall  be  President  and 
Vice-President." 

If  the  right  to  speak  by  a  majority  is  inherent  in  repub- 
lican government,  that  right  has  been  steadily  infringed 
since  the  Union  was  formed,  both  in  national  and  State 
elections,  for  there  have  been  minority  Presidents,  minor- 
ity governors,  minority  Senators  and  Representatives. 
The  contention  of  the  minority  report  would  render 
"majority  government"  a  despotism.  It  as  effectively 
disfranchises  the  minority  voter  as  if  he  had  no  ballot, 
thus  politically  "keeps  the  word  of  promise  to  the  ear, 
but  breaks  it  to  the  hope."  It  utterly  misapprehends 
the  scope  and  intent  of  the  proposed  amendment  in  its 
assumption  that  the  amendment  "confers  upon  the 
United  States  the  right  to  say  by  a  majority  of  the  whole 
who  shall  be  President  and  Vice-President."  As  will 
hereafter  be  argued,  the  apportionment  system  would 
give  a  higher  significance  to  the  State  and  be  its  most 
enduring  bulwark  against  encroachment  by  central 
authority. 

The  majority  report  wisely  decided  that  to  the  district 
plan,  however  distinct  an  advance  it  was  over  the  general- 
ticket  plan,  there  are  insuperable  objections: 

\f  **  First,  the  districts  are  not  now,  and  could  not  well  be 

made,  permanent  geographical  divisions,  like  the  States,  but 
would  be  subject  to  constant  changes  by  the  worst  species  of 
gerrymandering.  Secondly,  there  would  always  be  a  number 
of  doubtful  districts  to  be  contended  for  by  partisan  strife. 
These  evils — and  they  are  evils  of  greatest  magnitude — will 
necessarily  be  eliminated  by  the  plan  proposed.  The  advan- 
tages of  the  plan  are  many.  It  would  enable  every  voter  to 
vote  for  the  man  of  his  choice  with  an  absolute  certainty  that 


Amendments  Offered  in  Congress     359 

he  and  those  who  voted  with  him  would  receive  their  proper 
proportion  of  the  electoral  vote. ' ' 

The  committee  further  pointed  out  that  under  its  plan 
"any  fraud  capable  of  being  accomplished  would  affect 
ordinarily  only  the  smallest  fraction  of  a  vote ;  it  would 
not  be  worth  while  to  attempt  a  fraud  for  such  insignifi- 
cant results."     In  proof  of  this  the  committee  says: 

* '  The  ratio  of  the  popular  vote  to  an  electoral  vote  at  the 
last  presidential  election  [1876]  ranged  in  the  different  States 
from  six  thousand  up  to  twenty-nine  thousand.  To  secure  a 
single  additional  electoral  vote,  a  party  would  be  compelled  to 
increase  its  popular  vote  to  the  extent  of  such  ratio  in  any 
State ;  a  less  increase  would  give  a  proportionate  fraction  of 
an  electoral  vote.  So  great  a  change  of  popular  vote  being 
required  to  effect  so  slight  a  result  in  the  electoral  vote,  it 
needs  no  argument  to  demonstrate  that  the  temptation  to  fraud 
is  almost  wholly  taken  away,  and  its  discovery  made  certain, 
if  attempted." 

The  proposed  amendment  of  the  committee  is  as  fol- 
lows: 

*  *  Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  Af?ierica  in  Congress  assembled  {two  thirds  of 
each  House  concurring  therein)^  That  the  following  be  proposed 
as  an  amendment  to  the  Constitution  of  the  United  States; 
which,  when  ratified  by  three  fourths  of  the  Legislatures  of 
the  several  States,  shall  be  valid,  to  all  intents  and  purposes, 
as  part  of  the  said  Constitution,  to  wit : 

* 'article    XVI. 

'*  The  President  and  Vice-President  of  the  United  States 
shall  be  chosen  by  the  people  of  the  several  States ;  the  electors 
in  each  State  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  State  Legislature;  they 
shall  vote  by  ballot  for  President  and  Vice-President  on  the 


36o  '  The  Electoral  System 

day  provided  by  law,  which  day  shall  be  fixed  by  Congress, 
and  be  the  same  throughout  the  United  States. 

"  Each  State  shall  be  entitled  to  a  number  of  electoral  votes 
equal  to  the  number  of  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress. 

*  *  The  electoral  votes,  and  fraction  thereof,  of  each  person 
voted  for  as  President  in  any  State,  shall  be  ascertained  by 
multiplying  his  entire  popular  vote  therein  by  the  whole  num- 
ber of  the  electoral  votes  of  the  State,  and  dividing  the  product 
by  the  aggregate  popular  vote  of  the  State  for  all  persons 
voted  for  as  President;  and  the  quotient  shall  be  the  number 
of  electoral  votes  and  fraction  thereof  to  which  such  person 
shall  be  entitled,  using  for  such  fraction  three  decimals  and 
no  more. 

'  *  The  foregoing  provisions  shall  apply  to  the  election  of 
Vice-President;  but  no  person  constitutionally  ineligible  to 
the  office  of  President  shall  be  eligible  to  that  of  Vice-President 
of  the  United  States. 

'*  Within  ten  days  after  any  presidential  election,  the  return- 
ing officers  of  elections  in  each  State,  in  accordance  with  the 
laws  thereof,  shall  make  proper  returns  in  duplicate  of  the 
votes  cast  for  President  and  Vice-President,  and  shall  transmit 
the  same,  under  seal,  to  the  secretary  of  State,  or  other  officer 
lawfully  performing  the  duties  of  such  secretary,  one  of  them 
by  mail  and  the  other  by  special  messenger,  and  the  said  re- 
turns shall  be  publicly  opened  by  said  secretary  or  other  officer 
in  the  presence  of  the  chief  executive  magistrate  of  the  State 
and  the  State  auditor  or  comptroller;  but  if  either  of  said 
officers  fail  to  act,  the  attorney-general  of  the  State  shall  act  in 
his  stead;  and  said  officers  by  and  before  whom  said  returns 
are  opened  shall  ascertain  the  popular  vote  and  forthwith  make 
apportionment  of  the  electoral  vote  as  hereinbefore  provided; 
and  shall  thereupon  make  three  distinct  lists  of  all  persons 
voted  for  as  President  and  Vice-President,  comprising  the 
popular  vote  by  counties,  parishes,  or  other  principal  divisions 
of  the  State,  and  their  apportionment  aforesaid,  which  lists 
they  shall  sign  and  certify,  and  shall  transmit  two  of  them, 
sealed,  to  the  seat  of  government  of  the  United  States,  one 


Amendments  Offered  in  Congress     361 

directed  to  the  president  of  the  Senate,  the  other  to  the 
Speaker  of  the  House  of  Representatives;  the  third  list  shall 
be  filed  and  recorded  in  the  office  of  the  said  secretary  of 
State.  Said  apportionment  shall  be  made  on  a  day  fixed  by 
Congress,  and  be  the  same  throughout  the  United  States. 

'*  If  there  shall  be  a  contest  in  any  State  as  to  the  election 
of  President  or  Vice-President,  the  same  may  be  passed  upon 
by  its  highest  judicial  tribunal,  in  accordance  with  its  laws; 
the  decision  thereof  shall  be  by  it  certified  and  transmitted, 
sealed,  to  the  seat  of  government  of  the  United  States,  directed 
to  the  president  of  the  Senate.  The  president  of  the  Senate 
shall,  in  the  presence  of  both  Houses  of  Congress,  assembled 
for  that  purpose  in  the  hall  of  the  House  of  Representatives, 
open  all  the  certificates;  the  electoral  votes  shall  then  be 
counted  by  the  two  Houses,  as  certified,  unless  rejected  by 
both  Houses;  but  if  there  be  a  certificate  of  decision  by  the 
highest  judicial  tribunal  of  any  State  upon  a  contested  election 
therein,  the  electoral  votes  of  such  State  shall  be  counted  in 
accordance  with  such  decision,  unless  the  same  be  overruled 
by  both  Houses;  but  if  there  be  no  such  certificate  of  decision, 
the  contested  votes  from  any  State  shall  not  be  counted  unless 
both  Houses  concur  therein.  If  there  be  more  than  one  cer- 
tificate of  electoral  votes  from  any  State,  and  no  such  judicial 
decision  as  aforesaid,  or  if  there  be  more  than  one  such  de- 
cision from  any  State,  in  either  case  that  certificate  of  electoral 
votes  which  shall  be  held  by  both  Houses  to  be  made  by  the 
rightful  authority,  and  that  judicial  decision  which  shall  be 
held  in  like  manner  to  be  made  by  the  rightful  tribunal,  shall 
be  conclusive,  and  the  votes  be  counted  accordingly,  unless 
rejected  by  both  Houses. 

"  The  person  having  the  highest  number  of  electoral  votes 
for  President  shall  be  the  President;  but  if  two  or  more  persons 
have  an  equal  and  the  highest  number  of  such  votes,  then 
from  such  persons  the  House  of  Representatives  shall  choose 
immediately  the  President.  But  in  choosing  the  President  the 
votes  shall  be  taken  by  States,  the  representation  from  each 
State  having  one  vote.  A  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two  thirds  of  the  States, 


362 


The  Electoral  System 


and  a  majority  of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a  Presi- 
dent, whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  4th  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the  death  or 
other  constitutional  disability  of  the  President. 

'*  The  person  having  the  highest  number  of  electoral  votes 
as  Vice-President  shall  be  Vice-President;  but  if  two  or  more 
persons  have  an  equal  and  the  highest  number  of  such  votes, 
then  from  such  persons  the  Senate  shall  choose  the  Vice- 
President.  A  quorum  for  the  purpose  shall  consist  of  two 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice." 

The  amendment  proposed  by  the  Southard  commit- 
tee, although  admirable  in  principle,  is  disfigured  by- 
two  extremely  undesirable  features.  It  maintains,  with 
slight  changes,  the  substitute  election  which  the  pres- 
ent Constitution  requires  to  be  held  in  the  House  in 
case  of  the  failure  of  the  electors  to  agree  upon  a  Presi- 
dent, and  in  the  Senate  in  case  of  their  failure  to  agree 
upon  a  Vice-President.  By  giving  Congress  the  power 
to  count,  the  amendment  would  imbed  in  the  Constitu- 
tion a  doctrine  at  war  with  the  fundamental  notion  of  dis- 
tinct governmental  departments.  The  disfranchisement 
of  a  State  by  Congress  would  become  possible  if  this 
amendment  were  to  be  made  part  of  the  organic  law,  for 
the  difficulty  of  finding  an  "ultimate  arbiter"  between 
the  two  Houses  inheres  in  every  form  of  congressional 
count,  whether  the  count  be  in  accordance  with  the  Mor- 
ton bill,  the  act  of  1887,  or  this  proposed  amendment. 
All  idea  of  congressional  control  over  the  count  should 
be  discarded.  Southard's  plan,  on  the  contrary,  would 
exalt  this  vicious  notion  into  a  constitutional  principle. 

In  a  recent  article,'  Mr.  John  G.  Carlisle  has  argued 
for  an  amendment  containing  the  substantive  features  of 

'  "  The  Remedy,"  24  Forum,  657. 


Amendments  Offered  in  Congress     3^3 

the  plans  proposed  by  Maish  and  Southard.  After 
dwelling  upon  the  dangers  of  the  present  electoral  sys- 
tem, Mr.  Carlisle,  in  urging  its  abolition,  says  that  the 
people,  that  is,  the  electors  having  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the 
State  Legislature,  should  vote  direct  for  President  and 
Vice-President.  Each  State  should  be  given  a  number 
of  votes,  electoral  or  presidential,  equal  to  the  number 
of  its  Senators  and  Representatives  in  Congress,  and  in 
ascertaining  the  result  of  the  election  each  person  voted 
for  should  be  entitled  to  have  counted  in  his  favor  a 
number  of  the  presidential  or  electoral  votes  of  each 
State  corresponding  to  the  proportion  of  the  popular 
vote  received  by  him  in  each  State. 

"  The  people  of  each  State  would  continue  to  vote  as  they 
now  vote,  independently  of  the  people  of  all  the  other  States, 
and  the  effect  of  their  votes  upon  the  result  of  the  election 
would  not  depend  in  the  least  degree  upon  the  action  of  the 
people  elsewhere.  Voters  in  the  several  States  would  not  be- 
come voters  of  the  United  States,  but  would  remain  voters  of 
their  respective  States." 

Under  this  plan,  he  argues,  it  will  be  just  as  important 
to  secure  a  large  vote  in  one  State  as  in  another,  but  "the 
demoralizing  contests  for  the  control  of  doubtful  or 
'pivotal'  States  will  not  occur." 

No  plan  has  ever  been  suggested  which  would  so  cer- 
tainly secure  minority  expression  or  preclude  the  possibil- 
ity of  fraud  in  a  presidential  election.  That  it  can  be  so 
employed  as  to  insure  a  true  and  correct  count,  without 
conferring  canvassing  power  upon  Congress,  it  will  be  my 
aim  to  show. 


CHAPTER   XIII 

A   SUGGESTED   REMEDY 

THE  theory  of  the  electoral  franchise,  as  exercised  in 
the  United  States,  is  that  every  voter  is  a  voting 
unit,  of  equal  force  with  every  other  voter.  Equality 
consists  not  alone  in  the  privilege  of  enjoying  the  elective 
franchise,  but  in  the  efficiency  of  the  vote.  The  voting 
power  of  the  several  units  being  equal,  the  only  differ- 
ence lies  in  aggregates.  If  the  total  of  the  units  for  one 
ticket  exceed  the  total  for  another,  the  vote  for  the  de- 
feated candidate  is  ineffective  in  respect  of  the  immediate 
end  sought.  This,  however,  is  but  another  phase  of  the 
law  that  the  stronger  force  or  combination  of  forces  is 
controlling.  Subject  to  the  possibility  that  in  the  im- 
mediate election, — not  in  its  prospective  potency, — the 
ballot  may  prove  to  be  inefficacious,  every  voting  unit 
should  be  the  equivalent  of  every  other  and  play  the  same 
part  as  its  fellows  in  the  creation  of  an  ultimate  aggre- 
gate. Whatever  force  there  may  be  in  the  idea  that 
voting  power  should  be  so  correlated  with  education  or 
intelligence  as  to  give  the  superior  intelligence  more  in- 
fluence in  the  exercise  of  the  ballot,  that  idea  has  not  yet 
pervaded  the  American  mind,  and  is  at  present  unprac- 
tical ;  for  if  political  philosophy  inculcate  any  lesson,  it 
is  that  electoral  methods  are  not  to  be  reasoned  out  in 
the  closet,  but  are  to  be  evolved  from  political  experi- 
ence. Cumulative  voting,  except  in  so  far  as  the  system 
hereafter  to  be  explained  helps  to  advance  it,  is  equally 

364 


A  Suggested  Remedy  365 

out  of  the  question.  In  every  gubernatorial  or  State 
canvass,  where,  as  is  common  throughout  the  country, 
each  citizen  deposits  his  ballot  directly  for  the  candidate 
for  the  particular  office,  each  vote  tends  directly  and 
equally  towards  a  particular  end, — the  creation  of  a  suc- 
cessful aggregate — and  sustains  no  loss  of  energy  by  the 
interposition  of  some  intermediate  office  or  college.  In 
every  voting  area  smaller  than  the  State,  the  same  prin- 
ciple holds  good ;  the  individual  vote  is  no  less  effective, 
and  results  are  determined  according  as  one  aggregate 
exceeds  another.  The  only  instance  in  the  use  of  the 
ballot  in  the  United  States  in  which  the  vote  is  shorn  of 
its  full  significance,  as  a  vote,  from  the  moment  of  its 
deposit,  or,  in  other  words,  becomes  subject  to  some  in- 
fluence that  may  render  it  absolutely  futile  and  lead  to 
its  elimination  from  the  final  count,  arises  under  the 
presidential  electoral  system.  The  voting  area  under  the 
general-ticket  system  is  the  State ;  if  the  State  were  par- 
celled into  districts,  the  voting  area  would  be  a  district 
and  that  area  be  expanded  to  embrace  the  entire  country^ 
supposing  all  State  lines  effaced.  Whenever  a  president 
tial  election  is  held,  the  real  aim  is,  and  has  been  ever 
since^the  initiation  of  the  Government,  not  the  election 
of  electors,  but  the  election  of  the  President ;  and  in  every 
State,  at  every  presidential  election,  owing  to  the  inter- 
vention of  the  electoral  college,  the  voter  for  electors  un- 
successful in  that  State  has  never  yet  deposited  a  ballot 
that  had  the  slightest  influence  in  the  ultimate  aggregate 
or  count.  This  result  is  not  commonly  appreciated; 
certainly  not  by  those  who  affirm  that  the  electoral  sys- 
tem, even  if  obsolete  and  archaic,  is  unimportant.  Were 
all  electoral  mechanism  discarded,  yet  the  general-ticket 
system  maintained,  the  same  reduction  in  the  efficiency 
of  each  voting  unit  would  continue,  and  even  if  the  dis- 
trict system  were  adopted,  impairment  of  the  voting 
power  of  all  voters  for  an  unsuccessful  candidate  would 


3^6  The  Electoral  System 

result,  although  in  diminished  ratio.  The  voting  unit 
would  rise  to  its  maximum  of  efficiency  if  each  voter 
should  contribute  directly  to  the  electoral  result  in  a 
State  in  the  ratio  which  his  vote  bears  to  the  total  num- 
ber of  voting  units  in  that  State. 
Ny^  The  general-ticket  system  stands  condemned  for  many 
reasons,  already  given,  and  the  artificial  district  division  is 
open  to  the  criticism  that  it  would  give  the  ballot  of  every 
citizen  who  votes  for  a  defeated  candidate  less  weight,  in 
itself,  than  the  corresponding  ballot  of  a  citizen  who  votes 
for  the  successful  one.  The  introduction  of  any  arbitrary 
thing  between  the  vote  and  the  result  deprives  the  vote 
of  its  force,  whether  the  arbitrary  obstruction  be  an 
elector  or  an  artificial  area,  such  as  a  district.  A  State 
is  not  an  artificial  area,  but  a  living  entity,  under  our  sys- 
tem of  government,  and  the  relative  electoral  weight  of 
the  several  States  must  be  preserved  unless  the  system  of 
the  Constitution  is  to  be  radically  altered.  That  a  State 
with  a  population  only  a  fraction  of  the  population  of  an 
ordinary  congressional  district  should  wield  equal  or 
greater  power  in  the  election  of  a  President  may  be  un- 
just in  theory,  but  the  compromise  was  a  necessary  con- 
cession to  the  smaller  States ;  and  unless  the  States  are  to 
form  a  different  sort  of  union,  this  electoral  inequality 
will  continue.  The  statistics  of  presidential  elections 
reveal  the  fact  that  this  inequality  tends  towards  a  mini- 
mum, because  the  vote  of  one  small  State  for  a  Repub- 
lican candidate,  for  example,  is  frequently  neutralized  by 
that  of  another  little  commonwealth  for  the  Democratic 
candidate.  fBut,  as  it  has  to  be  postulated  that  State 
'  lines  are  to  remain,  and  that  each  State  is  to  retain  that 
fraction  of  its  influence  in  the  choice  of  a  President  to 
which  its  representation  in  the  Senate  and  in  the  House 
entitles  it,  the  only  method  whereby  all  the  voting  units 
within  that  State  can  be  placed  upon  a  par  of  efficiency  is 
by  the  allotment  to  every  candidate  of  that  proportion  j 


A  Suggested  Remedy  367 

of  the  presidential  vote  of  the  State  to  which  the  ratio  of 
the  vote  for  him  to  the  entire  vote  of  the  State  for  all 
candidates  entitles  him.     Upon  this  plan  and  upon  this  ^ 

plan  only  is  each  voter  within  the  State  placed  in  that  H-^^l!:^'^ 
situation  of  equality  with  every  other  voter  to  which  the 
privilege  of  the  suffrage  gives  him  a  right.  It  is  true 
that  a  voter  for  a  candidate  who  gains  no  electoral  vote 
in  the  State  suffers  a  loss  of  voting  equality,  but  in  a 
presidential  election  this  is  not  a  fault  of  consequence, 
because  the  tendency  has  always  been  to  the  existence 
of  two  formidable  political  organizations,  and  if  a  party 
cannot  muster  a  sufficient  number  of  voting  units  in  a 
State  to  enable  it  to  control  at  least  one  electoral  or 
presidential  unit,  the  impairment  to  the  individual  vote 
is  not  serious.  If  three  or  four  parties  exist,  each  having 
considerable  or  comparatively  equal  strength,  this  system 
will  insure  to  each  of  them  its  full  electoral  significance. 

The  change  has  other  advantages  than  its  manifest 
justice  to  each  individual  voter.  While  the  district  sys- 
tem would  be  an  improvement  upon  the  general-ticket 
system,  in  lessening  the  temptation  to  fraud  and  securing 
a  partial  representation  of  minorities  and  in  bringing  the 
executive  and  the  Lower  House  of  Congress  into  har- 
mony, its  liability  to  the  "gerrymander"  would  greatly 
impair  its  usefulness.  As  a  matter  of  fact  no  plan  has 
yet  been  devised  that  can  prevent  the  reapportionment 
of  districts  to  suit  the  needs  of  partisanship  or  eradicate 
the  instinct  of  the  politician  to  use  all  means  not  for- 
bidden by  statute  to  secure  an  election  triumph.  The 
greatest  of  statesmen  have  not  been  exempt  from  the 
temptation  to  achieve  party  success  by  illicit  methods. 

Although  the  district  system  does  not  present  such 
inducement  to  fraud  as  the  general-ticket  system,  fraud 
is  still  possible.  Nor  does  the  district  system  give 
adequate  opportunity  for  the  expression  of  minority 
sentiment.     It  may  easily  happen  that  the  vote  of  a  few 


368  The  Electoral  System 

districts  in  a  State  or  in  different  States  would  be  deci- 
sive of  an  election,  for  certain  districts  may  be  corrupted 
and  those  districts  decide  the  election.  The  politician 
displays  a  certain  narrow  form  of  acumen,  and  politi- 
cal leaders  would  be  swift  to  locate  and  control  doubtful 
districts.  Returns  could  be  held  back  from  such  dis- 
tricts until  results  elsewhere  were  known,  and  such  re- 
turns then  be  manipulated  to  suit  the  exigencies  of  party. 
Nothing  of  this  kind  is  possible  under  the  system  here 
advocated;  this  system  gives  every  voter  opportunity 
not  only  to  vote,  but  to  participate  in  the  actual  result 
of  the  election. 

The  vital  difficulty  under  the  present  system  is  with 
the  electoral  count.  The  required  improvement  is  two- 
fold: first,  the  abolition  of  the  electoral  office,  and, 
secondly,  the  adoption  of  a  system  which  reduces  the 
ultimate  count  at  the  seat  of  government  to  a  simple 
mathematical  computation ;  in  other  words,  to  what  the 
fathers  of  the  Constitution  intended  the  electoral  count 
should  be. 

Under  the  general-ticket  system,  even  without  elec- 
tors, returns  substantially  similar  to  those  now  made  by 
the  electoral  colleges  would  be  transmitted  from  the 
States  to  the  Government.  Under  the  district  system 
there  would  be  similar  returns,  every  separate  set  of 
which  would  be  subjected  to  scrutiny.  While  returns 
must  be  made  to  Washington  under  any  system,  the 
final  count  should  never  be  anything  more  than  an 
enumeration  of  electoral  or  presidential  votes,  the  only 
possibility  of  difficulty  arising  where  there  are  two  con- 
flicting State  governments,  a  contingency  that  has  to  be 
faced. 

The  canvass  in  every  State  would  take  place  as  it  does 
at  present  in  electing  a  governor,  and  experience  shows 
that  there  has  rarely  if  ever  been  a  controversy  in  any 
commonwealth,   except   during  the  reconstruction   era, 


A  Suggested  Remedy  369 

over  the  election  of  any  State  official.  The  canvass 
should  be  conducted  under  the  auspices  of  the  ultimate 
State  canvassing  board  precisely  as  in  the  election  of  a 
governor  or  other  State  official.  When  the  total  vote 
for  President  or  Vice-President  shall  have  been  counted 
and  canvassed  by  the  requisite  State  authorities,  it  will 
be  the  duty  of  those  authorities  to  allot  to  each  can^lH^ate 
his  quota  of  the  presidential  votes,  this  to  be  ascertained 
by  apportioning  to  him  presidential  votes  in  the  ratio 
between  the  total  popular  vote  for  him  and  the  aggregate 
popular  vote  for  all  candidates.  This  plan  would  have 
the  effect  of  stimulating  party  activity  in  salutary  direc- 
tions. Unable  longer  to  rely  upon  tricks  or  subterfuges, 
bribery  of  voters,  falsification  of  votes  or  certificates, 
unable  to  count  upon  the  strict  party  loyalty  of  certain 
sections,  or  the  apathy  of  others,  or  to  measure  indepen- 
dence or  hostile  sentiment  in  any,  parties  would  be  forced 
to  the  consideration  of  essentials.  Candidates  of  higher  ^  ':  \ 
character  would  be  sought,  and  campaigns  be  conducted 
for  specific  principles.  Intelligence  and  independence 
would  secure  more  effective  expression,  and  there  would 
thus  be  achieved  one  great  aim  of  those  who  believe  in  a 
cumulative  educated  vote, — that  is,  the  bringing  of  higher 
voting  qualities  into  a  position  of  commanding  influence 
in  a  campaign.  The  ordinary  party  voter  is  in  a  condi- 
tion of  stable  equilibrium,  and  his  vote  can  be  predeter- 
mined. It  is  the  independent  voter  who  decides  elections, 
and  under  the  proposed  system  this  kind  of  citizen  fulfils 
his  function  best.  The  educative  influence  upon  the 
whole  mass  of  citizenship  of  such  a  method  of  voting  for 
the  President  can  hardly  be  exaggeratedy 
/  All  impediments  placed  between  the  voter  and  the  re- 
sult, whether  an  electoral  college  or  an  arbitrary  division 
of  a  State,  tend  to  diminish  the  voting  power  of  the  indi- 
.  vidual  voter.  The  proposed  method  not  only  overcomes 
\  that  evil,  but  operates  to  equalize  the  ballots  of  all  voters,^ 


370  The  Electoral  System 

even  in  view  of  the  final  result.  Everj^  citizen  who  shall 
go  to  the  polls  to  vote  for  either  President  or  Vice-Presi- 
dent will  be  possessed  of  the  consciousness  that  his  ballot 
is  no  longer  in  danger  of  becoming  a  cipher,  when  the 
vote  of  his  State  comes  to  be  counted,  but  is  sure  to 
enter  as  a  dynamic  unit  into  the  ultimate  choice  of  his 
Stat^  and  can  be  neither  nullified  nor  impaired.  (Even 
if  it  do  not  enter  into  the  larger  or  the  smaller  ratio  of 
the  electoral  strength  of  the  State  in  quantity  sufficient 
to  gain  a  single  presidential  vote,  it  is  no  longer  in  dan- 
ger of  absolute  annihilation,  and  its  decimal  strength, 
added  to  the  presidential  units  cast  for  the  same  candi- 
dates in  other  States,  may  co-operate  towards  an  ultimate 
triumph)  (Under  the  present  system  of  voting,  whether 
for  electors,  State  officers,  members  of  Congress,  or  other 
officials,  when  the  canvass  comes  to  be  made,  every  citi- 
zen who  has  not  voted  for  the  winning  side  perceives 
that,  so  far  as  immediate  results  are  concerned,  he  might 
as  well  not  have  voted.  Under  the  proposed  method 
this  can  never  happen  in  the  ascertainment  of  the  will  of 
the  State,  for  each  party  is  to  receive  its  due  share  of  the 
State's  presidential  votes.y  No  other  system  so  com- 
pletely preserves  the  equality  of  the  States.  A  new 
dignity  is  thus  imparted  to  the  State;  it  is  an  integer, 
separate  from  its  sisters,  in  the  election  of  President ;  and 
every  citizen  of  the  State  knows  that  the  subtraction  of 
his  vote  would  make  a  difference  in  the  result,  and  that 
the  voice  of  the  State,  as  ultimately  proclaimed,  is  the 
direct  sum  of  all  the  individual  voices  throughout  the 
commonwealth.     A  new  and  higher  theory  of  the  State ' 

'  The  true  conception  of  the  State  is  not  that  it  consists  of  a  majority  or 
a  plurality  of  the  people  at  any  time  in  control  of  its  administrative  and 
legislative  departments.  The  State  is  the  abstract  of  all  the  people  who 
compose  it,  although  it  usually  acts  through  agents  elected  by  only  a  por- 
tion of  its  citizens.  A  State  is  as  much  a  federation  as  is  a  republic  of 
States.  Under  the  contrary  doctrine  all  governmental  functions  should  be 
absorbed  in  a  central  authority.     The  preamble  of  almost  every  State  con- 


A  Suggested  Remedy  371 

rises  into  conception,  while  there  is  also  recognized  a 
dominating  will  of  the  central  authority,  the  expression 

stitution  recites  that  the  instrument  is  the  work  of  the  people  of  the  State  ; 
the  people  ratify  a  constitution  before  it  becomes  effective,  and,  in  every 
State,  the  people  may  amend  it  through  conventions  to  which  they  elect 
delegates.  The  Legislature  of  any  State  has  the  constitutional  power  to 
declare  that  the  choice  of  presidential  electors  should  be  determined  in  such 
a  manner  as  is  herein  proposed. 

That  a  State  is  not  a  majority  of  the  people,  but  the  entire  people,  was 
well  shown  in  the  celebrated  case  of  Texas  vs.  White,  7  Wallace  R.,  700, 
721,  where  Chief  Justice  Chase,  after  stating  the  various  significations 
attached  to  the  word, — of  a  people  or  community  of  individuals  united 
more  or  less  closely  in  political  relations,  inhabiting  the  same  country  ;  of 
the  country  or  territory  itself ;  of  the  government  under  which  the  people 
live  ;  and  of  the  combined  idea  of  people,  territory,  and  government,  says  : 
"In  all  these  senses  the  primary  conception  is  that  of  a  people  or  com- 
munity. The  people,  in  whatever  territory  dwelling,  either  temporarily  or 
permanently,  and  whether  organized  under  a  regular  government,  or  united 
by  looser  and  less  definite  relations,  constitute  the  State.  ...  A  State, 
in  the  ordinary  sense  of  the  Constitution,  is  a  political  community  of  free 
citizens,  occupying  a  territory  of  defined  boundaries,  and  organized  under  a 
government  sanctioned  by  a  written  constitution,  and  established  by  the 
consent  of  the  governed.     .     .     . 

"  And  there  are  instances  in  which  the  principal  sense  of  the  word  seems 
to  be  that  primary  one  to  which  we  have  adverted,  of  a  people  or  a  political 
community,  as  distinguished  from  a  government. 

"  In  this  latter  sense  the  word  seems  to  be  used  in  the  clause  which  pro- 
vides that  the  United  States  shall  guarantee  to  every  State  in  the  Union  a 
republican  form  of  government,  and  shall  protect  each  of  them  against 
invasion." 

And  in  McPherson  vs.  Blacker,  Chief  Justice  Fuller,  speaking  for  the 
highest  tribunal  of  the  nation,  in  answer  to  a  like  criticism  against  the' 
adoption  of  the  district  system  in  Michigan,  said  :  "  The  act  of  appointment 
is  none  the  less  the  act  of  the  State  in  its  entirety  because  arrived  at  by  dis- 
tricts, for  the  act  is  the  act  of  political  agencies  duly  authorized  to  speak 
for  the  State,  and  the  combined  result  is  the  expression  of  the  view  of  the 
State,  a  result  reached  by  direction  of  the  Legislature,  to  whom  the  whole 
subject  is  committed." 

The  majority  report  of  the  Southard  committee  is  therefore  sound  in  its 
declaration:  "  The  State  and  the  people  who  compose  it  are  virtually  one 
and  the  same.  .  .  .  For  all  the  purposes  of  domestic  government,  the 
people,  theoretically  and  practically,  constitute  the  State,  although  in  a 
technical,  legal  sense,  the  organized  body  politic  is  recognized  as  such." 


\ 


372  The  Electoral  System 

of  the  resolve  of  a  majority  or  plurality  of  all  the  States 
composing  this  imperial  republic.  Those  who,  like  Sen- 
ator Edmunds,  object  to  the  district  system  as  oblitera- 
tive  of  State  lines  must  recognize  that  the  proposed 
substitute  for  the  present  system  preserves  the  State 
as  an  entity.  Never  has  a  State,  in  the  sense  of  the 
citizenship  of  which  it  is  composed,  been  adequately 
represented  in  a  presidential  election.  When  electors 
were  appointed  by  the  Legislature,  there  was  a  suppres- 
sion of  a  large  section  of  citizenship,  the  minority  party, 
whose  ballots  were  more  than  counterbalanced  in  the 
Legislature  by  the  ballots  of  their  opponents.  Under 
the  district  system,  which  was  never  in  uniform  operation 
throughout  all  the  States,  there  was  the  equally  despotic 
control  of  the  majority  in  the  district,  and  the  district 
was  itself  an  arbitrary  subdivision  of  the  State.  Under 
the.._general-ticket  system  vast  masses  of  citizens  have  in 
effect  been  disfranchised  even  by  their  inferiors  in  num- 
bers. To  all  such  injustice  there  will  be  an  end  and  the 
ballot  will  gain  a  new  meaning  and  importance  upon  the 
adoption  of  the  proposed  method. 

Inasmuch  as  the  State  should  control  its  own  count, 
and  is  to  fulfil  the  same  function  as  under  the  present 
Constitution,  although  much  more  perfectly,  the  State 
should,  as  at  present,  decide  upon  the  qualifications  of 
its  voters.  There  is  no  occasion  for  any  departure  from 
the  plan  of  the  original  Constitution,  no  reason  for  draw- 
ing under  the  jurisdiction  of  the  general  Government 
questions  touching  the  qualifications  for  suffrage  of  citi- 
zens who  vote  for  President.  The  lines  of  demarcation 
between  State  and  Federal  authority  should  be  drawn 
with  the  strictest  precision.  Were  the  existing  system 
otherwise  flawless,  the  limitations  could  be  plainly  made. 
The  appointment  of  electors  and  the  deposit  of  their 
votes  are  absolutely  under  State  control,  but  from  the 
moment  when  the  returns  are  transmitted  to  Washing- 


A  Suggested  Remedy  373 

ton  the  subject  passes  under  exclusive  central  control. 
Equally  sharp  distinctions  are  attainable  under  the  pro- 
posed system.  It  would  make  the  simplest  change  in 
the  present  Constitution,  although  a  radical  one.  While 
it  fully  preserves  the  meaning  and  intent  of  that  instru- 
ment, in  all  other  respects  save  in  regard  to  electors, 
whose  office  it  abolishes,  it  is  based,  like  all  other  pro- 
visions of  the  organic  law,  upon  prior  experience.  It 
provides  for  a  true  arithmetical  count  and  a  declaration 
that  shall  be  final  and  irreversible,  for  the  title  to  the 
office  of  the  President  must  never  remain  in  suspense 
for  an  instant. 

How,  it  may  be  asked,  is  the  evil  of  multiple  returns 
to  be  averted?  None  such  can  ever  come,  unless  there 
should  be  rival  State  governments  in  the  same  com- 
monwealth, as  when  both  Kellogg  and  McEnery  claimed 
the  governorship  of  Louisiana.  The  danger  in  the  pres- 
ent system  from  the  caprice  of  voters  is  also  avoided. 
Should  some  sectional  or  socialistic  feeling  prevail  in  a 
number  of  States,  it  might,  with  slight  aid  from  more 
rational  sections,  control  the  presidency ;  whereas,  while 
a  plurality  candidate  is  a  possibility  under  the  proposed 
system,  the  successful  candidate  is  far  more  likely  to 
reflect  the  actual  sentiment  of  his  party.  Had  such  a 
system  been  in  existence  prior  to  the  Civil  War  every 
Southern  citizen  whose  affinities  lay  with  the  Republican 
party  would  have  found  opportunity  to  express  his  senti- 
ment at  the  polls  effectively  and  without  danger  of  ostra- 
cism, since  his  ballot  was  secret.  "The  South  would  have 
been  taught  to  respect  the  strength  of  its  minorities,  and 
have  been  enlightened  as  to  the  intensity  of  antagonistic 
feeling  in  other  States  where  similar  ideas  were  in  a 
minority.  In  result  the  course  of  events  might  easily 
have  been  modified. 

It  is  an  elementary  proposition  of  mathematics  that 
there  is  far  more  probability  of  an  equality  within  the 


374  The  Electoral  System 

State  in  the  division  of  electoral  votes  than  in  the  division 
of  the  popular  vote  of  the  State.  The  nearest  approxi- 
mation in  the.  history  of  the  nation  to  equality  of  the 
popular  vote  for  candidates  for  the  presidency  occurred 
in  Maryland  in  1832,  when  Clay's  popular  vote  exceeded 
Jackson's  vote  by  four.  It  may  be  that  there  never  was 
this  close  approximation,  for  the  vote  for  Wirt  may  have 
been  included  in  the  returns  for  Clay.  Inspection  of 
election  statistics  shows  a  number  of  fairly  close  approxi- 
mations, but  no  instance  of  equality  in  the  popular  vote 
of  a  State  for  different  candidates,  through  an  entire  cen- 
tury. Hence  the  likelihood  of  an  equal  division  of  the 
total  popular  vote  of  a  State  among  two  or  more  candi- 
dates is  very  remote.  The  probability  of  an  even  division 
of  the  electoral  vote  occurring  at  the  same  time  with  an 
even  division  of  the  total  popular  vote  either  of  a  State 
or  of  the  nation  is  much  more  remote;  hence  the  danger 
of  tie  votes  is  reduced  to  a  minimum.  Wherever  the 
number  of  presidential  votes  throughout  the  country  is 
an  odd  number  the  danger  of  an  equality  of  division  is, 
perhaps,  less  than  when  that  number  is  an  even  number. 
If  two  or  more  candidates  having  the  highest  number 
of  presidential  votes  throughout  the  country  should  have 
also  an  equal  number  of  such  votes  (which  might  as  easily 
happen  under  the  proposed  as  under  the  existing  system), 
the  presidency  is  to  be  allotted  to  the  candidate  who  has 
the  largest  popular  vote  throughout  the  entire  country. 
There  could  be  no  difficulty  in  making  a  selection  under 
this  plan.  Every  certificate  sent  from  a  State  to  Wash- 
ington would  contain,  first,  the  total  popular  vote  of  the 
State,  second,  the  number  of  popular  votes  for  each  can- 
didate, and,  third,  the  apportionment  of  the  State's 
presidential  vote  among  such  candidates,  assigning  to 
each  a  fraction  of  a  per  cent.,  however  small  the  fraction 
may  be,  provided  it  be  not  less  than  the  equivalent  of 
three  or  four  decimals.     Wherever  two  or  more  candidates 


A  Suggested  Remedy  375 

have  the  highest  number  and  the  same  number  of  presi- 
dential votes,  and  also,  as  is  improbable,  an  equal  popu- 
lar vote,  the  popular  vote  for  each  must  also  be  certified. 
Inasmuch  as  every  new  State  will  have  been  recognized 
as  a  State  before  the  popular  election,  there  is  no  need 
of  providing,  by  constitutional  amendment,  a  definition 
of  a  State.  Heretofore  the  difficulty  in  determining 
whether  a  community  had  a  right  to  be  considered  a 
State  has  arisen  from  the  fact  that,  at  the  time  of  the 
popular  election,  the  community  was  a  Territory,  but 
had  become  a  State  when  the  electors  convened  to  make 
their  choice  for  President  and  Vice-President  or  when  the 
electoral  count  took  place.  This  dual  election  occasioned 
the  controversy.  The  abolition  of  the  dual  election 
simplifies  the  question.  Unless  a  community  is  a  State, 
recognized  by  Congress  and  the  executive  department  on 
the  day  when  the  people  vote,  her  citizens  are  to  have  no 
voice  in  the  selection  of  a  President  or  Vice-President. 

All  contests  must  be  settled  within  the  State,  for  they 
are  exclusively  matters  of  State  concern.  Here,  again, 
the  independence  of  the  State  is  conserved.  Under  the 
present  Constitution,  contests  may  be  matters  partly  of 
State  and  partly  of  national  interest.  The  State  appoints 
the  electors;  the  electors  convene  within  the  State  and 
vote.  Controversies  over  their  appointment,  i.  e,,  as  ta 
the  number  of  votes  for  them,  should  be  settled  by  the 
States  themselves.  The  title  of  the  elector,  his  eligibil- 
ity to  the  office,  may  be,  and,  I  think,  properly  is,  a  mat- 
ter of  national  interest,  although  the  divergent  opinions 
of  statesmen  indicate  that  such  questions  may  legitimately 
come  before  either  a  State  or  a  Federal  tribunal. 

Under  the  suggested  system  the  national  Govern- 
ment would  be  concerned  with  nothing  beyond  the 
proper  certification  and  transmission  of  the  returns,  until 
they  are  opened  in  the  joint  meeting  of  the  Houses. 
If  an  ineligible  candidate  should  be  voted  for,  which  is 


37^  The  Electoral  System 

extremely  improbable,  it  would  be  the  duty  of  the  State 
canvassing  officials  to  report  the  fact,  together  with  the 
number  of  popular  votes  for  such  candidate  and  the  ratio 
of  the  electoral  votes  affected ;  and  these  votes  should  be 
discarded  in  the  final  count.  But  there  is  as  little  like- 
lihood that  any  party  will  nominate  an  ineligible  candi- 
date as  that  the  popular  election  will  not  be  held  on  the 
appointed  day.  The  abolition  of  the  electoral  college 
would  permit  of  a  longer  period  (if  that  should  be  decided 
upon  as  desirable)  for  the  adjustment  of  controversies 
within  the  State.  It  would  be  sufficient  if  they  were  all 
determined  before  the  second  Wednesday  of  February, 
which  allows  an  interval  of  more  than  three  months  after 
the  election  to  ascertain  how  the  people  of  the  State 
have  voted.  The  probability  that  any  contest  would 
arise  in  a  State  is  reduced  to  the  lowest  possible  minimum, 
because  the  temptation  to  fraud,  bribery,  and  false  cer- 
tificates of  all  sorts  is  greatly  reduced.  A  close  district, 
under  the  district  system,  might  be  contested  by  one 
party  or  the  other.  The  temptation  to  party  managers 
to  make  the  fight  in  close  or  doubtful  districts  is  pecul- 
iarly seductive.  In  fact,  as  Edmunds  says,  the  district 
system  would  increase  the  possibility  of  disputes  over 
returns,  by  making  the  number  of  returns  as  large  as  the 
number  of  districts.  A  close  State  might  occasion  con- 
troversy when  the  total  vote  of  the  State  was  to  be  swung 
to  one  party  or  the  other  under  the  general-ticket  system. 
Inasmuch  as  under  the  proposed  system  every  vote  in 
the  State  is  to  count,  and  as  the  presidential  votes  of  the 
States  are  to  be  divided  in  the  ratio  of  the  respective 
records  of  the  popular  vote,  there  could  be  no  incentive 
to  controversy,  unless  (something  extremely  unlikely) 
two  or  more  candidates  should  have  such  a  closely  ap- 
proximating popular  vote  as  to  imply  that  there  had  been 
corruption  or  bribery. 

Congress  should  make  complete  and  ample  provision 


A  Suggested  Remedy  377 

for  the  certification  of  the  vote  of  each  State  and  the  ap- 
portionment of  electoral  votes  among  the  candidates. 
The  liability  to  mathematical  error  in  all  matters  to  be 
certified  by  the  State  authorities  is  so  slight  that  it  may 
be  disregarded.  It  should  be  made  the  duty  of  the  State 
officials  to  authenticate  returns  by  appropriate  certifi- 
cates, and  a  serious  penalty  should  be  imposed  upon  dis- 
obedience or  neglect. 

Bearing  in  mind  the  various  questions  that  have  arisen 
in  the  history  of  the  electoral  count,  I  venture,  in  the 
light  of  the  different  suggestions  that  have  been  made 
and  of  the  foregoing  explanation,  to  propose  an  amend- 
ment, as  follows : 

ARTICLE  XVI 

Resolved,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled 
(two-thirds  of  each  House  concurring  therein),  that  the 
following  article  is  hereby  proposed  as  an  amendment  to 
the  Constitution  of  the  United  States  and  when  ratified 
by  the  Legislatures  of  three-fourths  of  the  several  States 
shall  be  valid  to  all  intents  and  purposes  as  a  part  of  the 
Constitution,  to  wit : 

I.  That  hereafter  the  President  and  the  Vice-President 
of  the  United  States  shall  be  chosen  directly  by  the  elec- 
tors of  the  respective  States  having  the  qualifications  by 
the  laws  thereof  requisite  for  the  electors  of  the  most 
numerous  branch  of  the  State  Legislature,  and  in  the 
manner  following:  Each  State  shall  be  entitled  to  a  num- 
ber of  votes  in  the  election  of  the  President  and  also  of 
the  Vice-President  equal  in  number  to  the  whole  number 
of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress  of  the  United  States,  which 
votes  shall  be  called  presidential  votes  and  vice-presiden- 
tial votes,  as  the  case  may  be.     Such  election  shall  be 


37^  The  Electoral  System 

held  upon  a  day  to  be  designated  by  Congress  and  shall 
be  the  same  day  throughout  all  the  States. 

2.  The  presidential  votes  to  which  each  State  shall  be 
entitled  shall  be  apportioned  among  the  persons  receiving 
the  votes  for  President  of  the  duly  qualified  electors  of 
the  State  in  proportion  to  the  number  of  votes  such  per- 
sons shall  respectively  receive  in  such  State,  to  be  ascer- 
tained by  dividing  the  total  number  of  votes  cast  by  the 
qualified  electors  of  such  State  voting  for  each  of  such 
persons,  by  the  total  number  of  votes  cast  by  all  the 
qualified  electors  of  the  State  voting  for  all  such  persons, 
and  allotting  to  each  of  such  persons  such  proportion. or 
fraction  or  decimal  portion  of  the  presidential  votes  of 
the  State  as  is  represented  by  the  ratio  of  the  total  num- 
ber of  votes  cast  for  him  by  all  the  qualified  electors  of 
the  State  to  the  total  number  of  votes  cast  by  all  the 
qualified  electors  of  the  State  voting  for  all  such  persons. 

3.  The  person  receiving  the  highest  number  of  presi- 
dential votes,  including,  if  such  there  be,  decimal  parts 
of  presidential  votes,  in  all  the  States,  shall  be  President, 
and  shall  be  declared  to  be  such  in  the  manner  hereinafter 
provided. 

4.  If  two  or  more  of  such  persons  shall  receive  the 
highest  and  an  equal  number  of  presidential  votes,  in- 
cluding decimal  parts  of  presidential  votes  in  all  the 
States,  that  one  shall  be  President  who  shall  have  re- 
ceived the  largest  number  of  votes,  in  the  aggregate,  of 
all  the  qualified  electors  for  President  in  all  the  States. 
If  two  or  more  such  persons  shall  receive  the  highest  and 
an  equal  number  of  presidential  votes,  including  decimal 
parts  of  presidential  votes  in  all  the  States,  and  shall  also 
have  an  equal  number  of  votes  in  the  aggregate  of  all  the 
qualified  electors  for  President  in  all  the  States,  that  one 
of  such  persons  shall  be  President  who  shall  have  received 
the  largest  number  of  votes  of  the  qualified  electors  in  the 
greatest  number  of  States. 


A  Suggested  Remedy  379 

5.  The  total  number  of  votes  cast  by  the  qualified 
electors  of  each  State  for  each  such  person  at  each  presi- 
dential election  shall  be  ascertained  and  determined  as 
soon  as  practicable  by  the  canvassing  authorities  of  the 
State  duly  constituted  by  the  laws  thereof  as  the  canvass- 
ing board  or  officers  of  such  State,  and  certified  to  be 
such  by  the  chief  executive  of  the  State.  And  by  such 
dates  as  Congress  shall  prescribe  lists  of  such  returns 
shall  be  made  by  such  canvassing  authorities  in  triplicate, 
all  of  which  sets  shall  be  duly  signed  and  certified  by 
them,  and  one  shall  be  transmitted  to  the  president  of 
the  Senate;  the  second  to  the  speaker  of  the  House  of 
Representatives;  and  the  third  shall  be  filed  in  the  office 
of  the  Secretary  of  State  of  the  United  States;  but  all 
such  lists  of  returns  shall  state:  (i)  The  aggregate  num- 
ber of  votes  for  all  such  persons  cast  by  the  duly  qualified 
electors  at  such  election ;  (2)  the  total  number  of  votes 
for  each  such  person  cast  by  such  duly  qualified  electors ; 
(3)  the  number  of  presidential  votes  of  the  State,  includ- 
ing decimal  parts  of  such  votes,  apportioned  to  each  such 
person,  according  to  the  principle  of  apportionment  de- 
clared in  this  article.  All  such  returns  shall  be  duly 
certified  under  the  great  seal  of  the  State  and  by  the 
chief  executive  thereof. 

6.  The  president  of  the  Senate  shall,  except  as  herein- 
after provided,  open  one  set  of  all  such  certificates  and  shall 
count  the  presidential  votes  returned  therein  in  the  pres- 
ence of  the  Senate  and  the  House  of  Representatives  with 
the  aid  of  two  tellers  to  be  appointed  by  each  House.  The 
person  having  the  greatest  number  of  presidential  votes, 
including  decimal  parts  of  such  votes,  in  all  the  States, 
shall  thereupon  be  declared  the  President  of  the  United 
States;  and  if  two  or  more  persons  have  the  highest 
number  and  an  equal  number  of  presidential  votes,  in- 
cluding decimal  parts  of  such  votes,  in  all  the  States, 
that  one  shall  be  declared  the  President  of  the  United 


3 


So  The  Electoral  System 


States  who  shall  according  to  such  returns  have  received 
the  largest  number  of  votes  in  the  aggregate  cast  by  the 
qualified  electors  for  President  in  all  the  States.  If  two 
or  more  such  persons  shall  receive  the  highest  and  an 
equal  number  of  presidential  votes,  including  decimal 
parts  of  such  votes,  and  shall  have  also  an  equal  number 
of  votes  in  the  aggregate  of  all  the  qualified  electors  who 
shall  have  voted  for  President  in  all  the  States,  that  one 
of  such  persons  shall  be  declared  President  who  shall  have 
received  the  largest  number  of  votes  of  the  qualified 
electors  in  the  greatest  number  of  States.  If  the  presi- 
dent of  the  Senate  shall  be  one  of  the  persons  voted 
for,  the  Speaker  of  the  House  shall  preside  and  shall 
declare  the  result,  unless  the  Speaker  shall  be  one  of  the 
persons  voted  for,  in  which  event  the  two  Houses  in 
joint  meeting  voting  per  capita  shall  select  the  presiding 
officer. 

7.  All  controversies  or  contests  over  the  votes  cast 
in  any  State  by  the  qualified  electors  of  such  State  for 
any  person  eligible  to  be  President  shall  be  determined 
according  to  the  laws  of  that  State  by  the  tribunals 
thereof;  and  all  such  controversies  or  contests  shall  be 
finally  determined  before  the  date  which  shall  be  desig- 
nated by  Congress  when  the  certificates  shall  be  opened 
as  prescribed  in  section  6  of  this  article.  If  any  de- 
cision by  the  highest  tribunal  of  said  State  having  juris- 
diction under  the  laws  thereof,  upon  any  controversy  or 
contest  affecting  the  returns,  shall  have  been  rendered 
after  the  transmission  of  the  lists  of  returns,  a  copy  of 
such  decision  exemplified  or  authenticated  in  such  man- 
ner as  the  Congress  shall  prescribe,  if  transmitted  as  said 
lists  of  returns  are  required  to  be  transmitted,  and  before 
the  final  count  prescribed  in  section  6  of  this  article, 
shall  govern  in  such  final  count. 

8.  The  foregoing  provisions  shall  also  apply  to  the 
election  of  Vice-President,  but  no  qualified  elector  shall 


A  Suggested  Remedy  381 

vote  for  persons  for  President  and  Vice-President  who 
shall  both  be  inhabitants  of  the  same  State  with  himself, 
or  his  vote  shall  be  null  and  void.  And  every  vote  by 
such  elector  for  a  person  ineligible  by  the  Constitution  to 
the  office  of  President  or  Vice-President  shall  be  null 
and  void. 

9.  The  Congress  shall  have  power  to  enact  such 
legislation  as  may  be  necessary  and  proper  for  carrying 
into  effect  each  and  all  of  the  provisions  of  sections  5, 
6,  7,  and  8,  respectively,  of  this  article,  and  may  pre- 
scribe appropriate  penalties  for  the  violation  of  said 
provisions  or  any  of  them. 

10.  In  case  of  the  death  or  inability  of  a  President- 
elect, or  his  renunciation  of  the  office  of  President,  the 
Vice-President-elect  shall  become  President,  and  the 
Congress  may  by  law  provide  for  the  case  of  the  death, 
or  inability  of  both  the  President-elect  and  the  Vice- 
President-elect,  and  the  renunciation  by  both  of  their  re- 
spective offices,  and  shall  declare  what  officer  shall  then 
act  as  President,  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed  or  a  President  shall  be  elected. 
The  Congress  shall  also  have  power  to  prescribe  what 
shall  constitute  inability  of  the  President  or  of  the  Vice- 
President,  President-elect  or  of  the  Vice-President-elect, 
and  in  what  manner  and  by  whom  such  inability  shall  be 
determined. 

Section  i  determines  what  voters  may  ballot  for  Presi- 
dent and  Vice-President,  and  it  uses,  in  describing  these 
voters  or  electors,  the  language  employed  in  subdivision 
I,  of  section  2  of  Article  I.,  which  provides  who  shall 
have  the  right  to  vote  for  Representatives.  Section  2 
is  in  accordance  with  the  theory  which  has  been  advo- 
cated in  this  chapter  that  each  voter  should  be  an  actual 
factor  in  the  ascertainment  of  the  division  of  the  presi- 
dential votes  to  which  his  State  is  entitled.  Section  3 
needs  no  explanation.     The  purpose  of  section  4  is  to 


382  The  Electoral  System 

settle  all  possible  controversy  or  dispute  in  case  of  a  tie. 
There  might  readily  arise  a  tie  in  the  present  electoral 
colleges,  and  two  or  more  candidates  might  easily  'have 
the  same  number  of  presidential  votes  even  if  the  colleges 
should  be  abolished.  But,  as  has  heretofore  been  ob- 
served, it  is  highly  improbable  that  any  two  candidates 
having  the  highest  and  an  equal  number  of  presidential 
votes  would  have  an  exactly  equal  number  of  votes  of  the 
electors  in  all  the  States.  If  such  an  improbable  con- 
tingency should  arise,  the  section  assures  the  election  of 
some  one  of  the  candidates,  by  providing  that  that  one 
shall  be  President  who  is  the  choice  of  the  larger  number 
of  States  in  addition.  The  provision  in  section  4  giv- 
ing the  presidency,  in  case  of  a  tie  in  presidential  votes, 
to  that  one  of  the  two  candidates  who  has  the  largest 
popular  vote  in  all  the  States,  is  of  value  also  in  tending 
to  secure  the  fullest  party  vote  in  every  State.  Since  the 
election  may  turn  upon  the  size  of  the  vote,  each  party 
will  aim  to  bring  out  its  full  strength.  The  solution  of 
a  tie  vote  is  thus  made  instrumental  in  obtaining  votes. 
The  purpose  of  section  5  is  to  solve  the  difficulties  which 
have  arisen  regarding  the  count  and  canvass  of  electoral 
returns.  I  have  already  stated  that  under  the  proposed 
system  the  possibility  of  disputes  will  be  reduced  to  a 
minimum.  The  summation  of  the  votes  cast  for  differ- 
ent candidates  by  the  electors  in  the  different  States  can 
readily  be  made,  and  only  when  the  number  of  votes  for 
two  or  more  candidates  closely  approximates  is  there  any 
likelihood  of  dispute  or  question.  But  such  disputes 
cannot  be  prearranged,  as  might  readily  happen  with 
small  districts  or  voting  areas,  and  all  incentive  to  dis- 
pute is  removed.  In  order  to  avoid  the  possibility  of 
multiple  returns,  provision  is  made  that  the  canvass  in 
each  State  shall  be  made  by  definitely  designated  canvass- 
ing officials,  and  unless  there  be  two  co-existing  State 
governments  in  a  commonwealth  there  cannot  be  more 


A  Suggested  Remedy  383 

than  one  such  canvassing  body  at  any  one  time ;  and  to 
authenticate  the  returns  of  this  body  as  the  canvassing 
authority,  the  certificate  of  the  executive  of  the  State  is 
required.  The  details  which  are  to  be  inserted  in  the 
returns  are  absolutely  necessary  to  a  correct  enumeration 
or  count  at  Washington,  and  they  contain  nothing  more 
than  may  be  essential.  If  the  successfulness  of  the  pro- 
posed method  be  tested  by  the  disputes  which  arose  in  the 
case  of  the  conflicting  returns  from  Florida,  Louisiana, 
South  Carolina,  and  Oregon,  in  1877,  it  will  be  found,  I 
think,  that  the  possibility  of  dual  returns  is  obviated.  In 
the  Florida  case  the  three  sets  of  certificates  transmitted 
from  that  State  were  all  differently  authenticated.  The 
first,  which  contained  the  return  of  the  Hayes  electors, 
was  authenticated  by  Governor  Stearns,  who  was  the  chief 
magistrate  of  that  commonwealth  at  the  time  of  the  popu- 
lar election.  The  second  and  the  third  were  authenticat- 
ed by  Governor  Drew,  who  took  office  on  January  i,  1877. 
These  last  two  sets  of  certificates  were  in  effect  one,  both 
having  been  sent  to  maintain  the  claim  that  the  Tilden 
electors  had  been  elected.  In  the  Louisiana  case  there 
were  also  three  sets  of  certificates,  the  first  and  the  third 
asserting  the  title  of  the  Hayes  electors,  and  the  second 
that  of  the  Tilden  electors,  the  first  and  third  having  been 
authenticated  by  the  governor  of  the  State  in  office  at  the 
time  of  the  popular  election,  and  the  second  by  Mc- 
Enery,  who  claimed  to  have  been  the  governor  at  such 
time.  The  first  of  the  two  Oregon  certificates  was  not 
authenticated  by  Governor  Grover,  the  chief  executive  at 
the  date  of  the  popular  election,  but  by  the  secretary  of 
state,  who  claimed  to  be  the  sole  State  canvassing  officer 
and  whose  title  to  that  position  was  upheld  by  a  majority 
of  the  commission.  The  second  return  was,  in  fact, 
authenticated  by  Grover,  but  was  not  predicated  upon 
the  action  of  the  State  canvassing  authority.  In  the 
case  of  South  Carolina,  Governor  Chamberlain  attached 


3^4  The  Electoral  System 

his  certificate  to  the  lists  transmitted  by  the  Hayes  elec- 
tors, whereas  the  second  certificate  had  no  such  authentica- 
tion. So  long,  therefore,  as  separate  State  governments 
are  not  asserted  to  exist  in  any  community,  there  can  be 
but  one  set  of  State  canvassing  officials  recognized  by  the 
laws  of  that  State  at  any  particular  date.  There  is  but 
one  date  possible,  the  date  of  the  return.  No  provision 
is  made  in  the  proposed  amendment  for  the  case  of  dual 
State  governments,  for  several  reasons:  First,  that  it 
does  not  comport  with  the  dignity  of  an  amendment  to  the 
Constitution  that  it  shall  recognize  the  possibility  of  such 
an  anomalous  condition  of  affairs  in  any  State  as  a  con- 
flict between  separate  governments;  second,  because  of 
the  extreme  unlikelihood  of  the  recurrence  of  such  con- 
ditions as  prevailed  in  1877;  and  third,  because,  under 
the  proposed  plan,  the  incentive  to  conflicting  returns  by 
separate  State  executives  is  removed  and  the  possibility 
of  such  conflict  eliminated.  Inasmuch  as  all  returns  are 
to  be  certified  under  the  seal  of  the  State  by  its  chief 
executive,  the  Government  is  furnished  with  the  high- 
est possible  authentication  of  the  jurisdiction  of  the 
State  canvassing  board.  In  the  event  of  a  contest  or 
controversy  which  shall  modify  or  alter  the  returns  as 
originally  transmitted  by  the  State  canvassing  authority 
under  executive  authentication,  it  is  equally  necessary 
that  the  final  judgment  of  any  State  tribunal  recanvass- 
ing  these  returns  should  be  authenticated,  but  that  is  a 
detail  for  congressional  legislation.  It  is  difficult  to  per- 
ceive how  any  controversy  as  to  the  returns  can  be  carried 
to  the  general  seat  of  government,  except  in  the  sole 
contingency  of  the  existence  of  rival  State  organizations. 
If  a  State  should  be  in  such  a  condition  of  anarchy  there 
might  well  be  a  provision  (which  has  been  omitted)  that 
the  returns  from  that  State  should  be  altogether  dis- 
carded. The  disfranchisement  of  the  State  would  thus 
be  the  consequence  of  its  own  acts  and  would  not  result 


A  Suggested  Remedy  3^5 

from  the  arbitrary  decision  of  the  two  Houses  of  Con- 
gress, or  of  either  of  them. 

The  provisions  of  section  6  are  designed  to  reduce 
the  count  at  Washington  to  the  simple  task  of  enumera- 
tion,— which  is  in  accordance  with  the  theory  of  the 
founders  of  the  Constitution, — and  the  declaration  of  the 
result.  Tellers  are  to  be  appointed  by  each  House  to 
aid  the  president  of  the  Senate,  who  might  find  the  duty 
of  making  the  enumeration  too  burdensome,  and  the  pro- 
vision for  tellers  gives  each  House  that  kind  of  surveil- 
lance over  the  ceremony  which  the  original  Constitution 
probably  intended  that  the  Houses  should  exercise.  To 
avoid  the  danger — which  under  the  proposed  system 
seems  almost  infinitesimal — that  the  president  of  the 
Senate,  if  a  candidate  for  the  place  of  chief  executive, 
might  be  swerved  by  unworthy  motives  from  the  correct 
performance  of  his  simple  duties,  provision  is  made  for 
the  substitution  of  the  Speaker  of  the  House  or,  should 
the  Speaker  of  the  House  be  disqualified  for  like  reasons, 
for  the  appointment  by  the  two  Houses  in  joint  session 
of  a  temporary  presiding  officer.  As  was  well  said  by 
several  of  the  majority  members  of  the  electoral  tribunal 
of  1877,  there  must  come  a  time  when  disputes  over  the 
presidential  succession  shall  terminate,  and  the  final  de- 
termination must  be  reached  before  the  4th  of  March. 
Hence  the  count  at  Washington  is  declared  to  be  a  final- 
ity, and  the  impressive  ceremony  of  a  declaration  or 
announcement  is  required;  and  in  order  to  remove  all 
possible  question,  the  amendment  proposes  in  section 
7  that  controversies  or  contests  shall  be  settled  by  the 
States  themselves.  This  is  plainly  in  accordance  with 
the  theory  of  the  present  Constitution  and  was  certainly 
the  doctrine  of  the  majority  of  the  Electoral  Commission 
of  1877,  'f  riot  of  all  its  members. 

To  avoid  such  a  question  as  arose  in  Arkansas  in  1873, 
— whether  a  State  has  a  great  seal, — the  Congress  might 


386  The  Electoral  System 

prescribe  that  every  State  shall  have  a  seal  for  the  pur- 
pose of  authenticating  its  returns,  and  might  require  the 
deposit  of  a  facsimile  or  an  appropriate  description  of 
the  seal  in  the  office  of  the  Secretary  of  State  at  Wash- 
ington. The  States  are  to  make  their  choice  of  Presi- 
dent and  Vice-President  with  absolute  freedom  from 
interference  by  the  general  Government,  while  Congress 
is  authorized  to  compel  by  legislation  a  proper  and  un- 
questionable certification  of  results. 

In  order  that  there  may  be  no  question  whether  the 
constitutional  prohibition  in  section  8  is  self-executing, 
the  section  provides  that  a  ballot  cast  by  a  qualified  elec- 
tor for  a  President  and  a  Vice-President,  both  of  whom 
shall  be  inhabitants  of  the  same  State  with  himself,  or  a 
ballot  cast  for  a  candidate  disqualified  by  the  Constitu- 
tion because  of  lack  of  age  or  of  citizenship,  shall  be  null 
and  void ;  and,  in  view  of  the  discrimination  between  the 
powers  that  belong  exclusively  to  the  State  and  those 
properly  vested  in  Congress,  section  9  gives  Congress 
power  to  enact  the  necessary  legislation  for  carrying  into 
effect  the  provisions  of  those  sections,  and  those  only, 
with  whose  operation  the  central  authority  is  concerned. 
Thus  the  amendment  preserves  the  separate  and  exclusive 
sphere  of  State  action  from  encroachment  by  the  general 
Government,  and  gives  to  each  qualified  voter  of  the 
State  that  measure  of  electoral  influence  to  which  under 
any  fair  system  of  suffrage  he  is  entitled.  The  useless  1 
and  dangerous  office  of  presidential  electors  disappears,] 
with  all  of  the  numerous  controversies  over  their  appoint- 
ment, their  title,  disqualifications,  the  existence  of  vacan- 
cies, the  right  to  fill  vacancies,  etc.  The  abolition  of  the 
electoral  colleges  of  itself  wonderfully  tends  to  a  clear 
and  sharp  demarcation  between  State  and  governmental 
functions  in  the  choice  of  President.  There  is  nothing 
revolutionary  in  these  suggestions;  they  all  harmonize 
with  the  fundamental  theory  of  the  Constitution,  and  aim 


A  Suggested  Remedy  387 

simply  to  insure  that  certainty  in  a  presidential  election 
which  is  of  the  highest  importance  in  the  interest  of 
order  and  tranquiUity. 

The  substitute  election  in  the  House,  which  has  been 
the  bane  of  our  politics,  is  abolished.  The  new  system, 
it  is  true,  permits  of  the  election  of  a  minority  President, 
but  so  would  all  amendments  that  have  ever  been  pro- 
posed. The  objection  of  the  States  represented  in  the 
convention  of  1787  to  the  choice  of  the  chief  magistrate 
by  less  than  a  majority  of  all  the  appointed  electors,  or 
less  than  a  majority  of  the  States  in  the  House,  was 
founded  in  fears  that  experience  has  shown  to  be  ground- 
less. As  was  said  by  the  Senate  committee  of  1874,  to 
whose  report  frequent  allusion  has  been  made:  "The 
President  elected  by  a  plurality  of  all  the  votes  in  a  fair 
election  would  carry  with  him  the  whole  moral  power  of 
the  office  and  be  regarded  by  the  nation  as  completely 
the  President  morally  and  legally  as  if  he  had  received  a 
majority  of  all  the  votes."  The  objections  which  apply 
to  the  election  of  a  minority  President  in  the  electoral 
colleges  or  in  the  House  of  Representatives  have  no 
significance  where  the  choice  is  made  directly  by  the 
people,  who  have  become  familiar  in  their  respective 
States  with  the  plurality  method  of  electing  State  officers, 
members  of  Congress,  members  of  the  State  Legislature, 
and  city,  county,  and  town  officials.  Nothing  can  be 
added  to  the  admirable  argument  of  the  Senate  commit- 
tee upon  this  point : 

"Where  the  plurality  system  is  adopted,  and  the  people 
vote  directly  for  candidates  and  not  for  electors  or  intervening 
agents,  every  man  casts  his  vote  with  a  knowledge  that  the 
candidate  who  receives  the  most  votes  will  be  declared  elected. 
There  can  be  no  inducement,  therefore,  to  scatter  the  vote 
with  a  view  of  throwing  the  election  into  the  House,  as  there 
may  be  under  the  present  system ;  and  every  voter  will  have 


388  The  Electoral  System 

strong  inducement  to  give  his  vote  for  the  best  man,  knowing 
that  the  result  of  the  election  is  to  be  final. 

' '  In  the  States  where  the  election  of  governor  and  other 
State  officers  by  the  direct  vote  of  the  people  is  conducted  on 
the  plurality  system,  it  happens  in  a  majority  of  cases  that  the 
officers  elected  actually  get  a  majority  of  all  the  votes  cast,  but 
where  they  do  not  receive  a  clear  majority  it  nearly  always 
happens  that  their  vote  approaches  very  closely  to  a  majority, 
and  is  generally  a  fair  expression  of  the  wishes  of  the  people ; 
and  we  have  never  known  a  case  of  the  election  of  governor 
or  other  important  State  officers  who  had  not  received  one- 
third  of  the  votes,  as  was  the  case  with  Mr.  Adams,  in  1825, 
who  was  made  President  through  the  machinery  of  the  election 
in  the  House. 

"Whatever  objection  may  exist  to  the  plurality  system, 
where  the  people  vote  directly  for  candidates  for  President 
and  Vice-President,  must  prevail  with  tenfold  force  under  the 
electoral  system,  for  under  the  electoral  system  it  is  quite 
possible,  and  even  probable,  that  the  man  may  have  the  ma- 
jority of  electoral  votes  who  is  largely  in  the  minority  in  the 
popular  vote.  Under  the  plurality  rule  no  man  can  be  elected 
who  has  not  received  more  votes  than  any  other  candidate; 
but  under  the  present  system  a  man  may  be  chosen  President 
who  receives  the  smallest  number  of  votes,  by  means  of  the 
electoral  college  or  throwing  the  election  into  the  House. 

"  It  may  be  further  remarked,  that  while  there  can  be  no 
election  of  President  under  the  present  system  except  by  a 
majority  of  all  the  electoral  votes,  yet  the  electoral  colleges 
themselves  in  the  several  States  are,  and  have  been  from  the 
first,  chosen  upon  the  plurality  system,  and  are  not  in  any  case 
required  to  have  a  majority  of  all  the  votes  cast  in  the  State." 

Section  10  differs  from  the  article  of  amendment  in  the 
joint  resolution  offered  in  the  Senate  in  1898  by  Senator 
Hoar  from  the  judiciarj^  committee  of  that  body.  The 
amendment  of  the  judiciary  committee  was  a  modification 
of  the  amendment  suggested  by  Mr.  Paine,  of  Maine,  and 
read  as  follows: 


A  Suggested  Remedy  3^9 

**  In  all  cases  not  provided  for  by  Article  II,  clause  5,  of  the 
Constitution,  where  there  is  no  person  entitled  to  discharge  the 
duties  of  the  office  of  the  President,  the  same  shall  devolve  upon 
the  Vice-President.  The  Congress  may  by  law  provide  for  the 
case  where  there  is  no  person  entitled  to  hold  the  office  of  Presi- 
dent or  Vice-President  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly  until  the 
disability  shall  be  removed,  or  a  President  shall  be  elected." 

The  resolution  passed  the  Senate  by  a  two-thirds  vote 
and  was  referred  to  the  House  committee  on  the  judici- 
ary, but  never  reported  from  that  committee.  On 
December  4,  1901,  Senator  Hoar  again  introduced  the 
resolution,  which  passed  the  Senate  and  was  sent  to  the 
House  of  Representatives,  where,  on  February  i,  1902, 
it  was  referred  to  the  House  committee,  but  never 
afterwards  heard  of.  The  resolution  as  twice  passed 
by  the  Senate  did  not  escape  criticism  in  that  body. 
Rawlins,  of  Utah,  queried  as  to  the  scope  of  the  word 
** entitled."  Might  not  that  word,  he  asked,  involve  the 
question  whether  the  person  claiming  to  be  elected  Presi- 
dent was  an  alien-born  person,  or  whether  the  person 
claiming  to  hold  the  office  was  lawfully  elected  thereto? 
If  so,  the  amendment  was  too  broad  in  its  scope.  Hoar, 
in  defending  the  committee's  resolution,  admitted  that 
the  use  of  the  word  "entitled"  had  been  much  discussed 
in  the  committee.  While  the  word  was  not  altogether 
satisfactory,  the  consensus  of  opinion  favored  it  as  the 
best  that  could  be  found.  The  joint  resolution  intro- 
duced by  the  Senator  from  Maine  and  prepared  by  his 
constituent  was,  said  Hoar,  intended  to  meet  the  case  of 
the  death  of  the  President-elect  after  the  meeting  of  the 
electoral  colleges  and  before  inauguration ;  but  there  was 
"no  provision  in  it  for  the  case  of  a  failure  to  elect  either 
or  both  the  President  and  Vice-President."  Such  a  fail- 
ure had  very  nearly  happened  in  the  case  of  the  great 
contest  between  Burr  and  Jefferson  and  might  very  well 


390  The  Electoral  System 

be  expected  to  occur  again.  The  word  "entitled"  has  a 
wider  significance  than  the  judiciary  committee  intended. 
But  inasmuch  as  the  amendment  to  the  Constitution  sug- 
gested in  this  chapter  abolishes  the  House  election,  and 
is  designed  to  obviate  the  possibility  of  a  failure  to  elect, 
it  is  unnecessary  in  section  lo  to  cover  the  wide  field 
which  the  Senate  amendment  proposed  to  include.  It  is 
sufficient  to  provide  for  the  contingency  of  the  death  of 
the  President-elect  or  the  Vice-President-elect,  or  of  both. 
Thus  the  troublesome  question  raised  by  Rawlins  respect- 
ing the  Senate  joint  resolution  of  1898  is  eliminated  be- 
cause the  need  for  such  an  amendment  is  dispensed  with. 
Section  10  follows  closely  the  language  of  the  present 
Constitution  in  respect  to  the  death  of  the  President  and 
the  Vice-President,  broadening  that  provision  to  embrace 
the  case  of  the  President-elect  and  the  Vice-President- 
elect. It  remains  for  Congress  to  define  inability  by 
adequate  legislation,  and  to  provide  for  the  effectual  exe- 
cution of  the  proposed  amendment  in  other  particulars, 
by  a  comprehensive  statute  framed  in  the  light  of  ex- 
perience. 

To  try  to  restore  the  electoral  scheme  of  the  fathers 
would  be  a  chimerical  undertaking.  To  attempt  the 
creation  of  any  plan  in  conflict  with  the  plain  trend  of 
institutional  development  would  be  equally  unwise. 
Nothing  in  the  suggested  amendment  is  at  variance  with 
the  fundamental  principles  of  the  Constitution,  save  that 
it  would  abolish  the  useless  and  dangerous  electoral  sys- 
tem. The  States  are  to  be  maintained  in  all  their  in- 
tegrity. No  concession  is  demanded  from  smaller 
commonwealths,  against  which  some  concession  from  the 
more  populous  States  should  be  offset,  but  the  rights  of 
all  the  States,  small  and  large,  under  the  organic  law  are 
preserved  inviolate.  While  the  electoral  representation 
of  each  State  is  to  remain  intact,  the  individual  voter  in 
each  State  is  given  his  due  share  of  influence.     Voting  is 


A  Suggested  Remedy  391 

made  direct;  unnecessary,  obsolete,  and  perilous  ma- 
chinery is  discarded,  and  the  final  electoral  count  at 
Washington  is  so  simplified  that  it  becomes  a  mere  com- 
putation to  be  followed  by  a  declaration  of  an  unimpeach- 
able result.  Under  such  a  plan  it  would  be  easy  to  obey 
the  constitutional  dictate,  "the  votes  shall  then  be 
counted."  The  States  would  gain  in  dignity,  citizenship 
would  be  exalted,  political  convictions  would  find  freer 
expression,  geographical  and  sectional  differences  would 
vanish,  and  minority  sentiment  obtain  its  due  share  of 
influence.  The  proposed  system  would  tend  to  emanci- 
pate the  voter  from  the  thraldom  of  party,  promote  in- 
dependence, and  open  avenues  for  direct  nominations  by 
the  people.  Under  such  a  system  it  would  become  pos- 
sible for  the  voter  to  enjoy  a  vital  and  not  a  merely 
nominal  power  in  the  selection  of  candidates. 

The  caucus  and  convention  have  usually  left  the  voter 
merely  a  barren  choice  between  candidates.  No  other 
method  that  has  been  proposed  would  give  each  citizen 
so  much  influence  over  the  personnel  of  the  men  to  be 
nominated,  because  none  other  gives  so  much  weight  to 
the  individual  ballot.  There  are  but  two  cardinal  facts 
for  the  independent  voter  to  remember  when  he  comes  to 
the  polls, — not  to  vote  for  two  candidates  both  of  whom 
come  from  the  same  State  as  himself,  and  not  to  vote  for  a 
candidate  disqualified  for  the  office  under  the  Constitution. 

The  purpose  of  the  foregoing  discussion  has  been  to 
explain  the  perils  to  the  nation's  peace  and  well-being 
that  grow  out  of  the  electoral  system.  Few  persons  who 
have  any  just  appreciation  of  the  constitutional  plan  fail 
to  condemn  it  as  useless,  yet  a  large  number  of  those  who 
concede  it  to  be  obsolete  paradoxically  regard  it  as  harm- 
less. Their  criticism  of  such  an  historical  study  is  likely 
to  be  that  theoretical  arguments  against  the  present  sys- 
tem are  of  little  value  in  comparison  with  the  many  prac- 
tical evidences  of  the  failure  of  voters  to  comprehend  the 


392  The  Electoral  System 

electoral  ballot ;  but  this  is  to  lose  sight  of  the  main 
intent, — that  the  system  should  be  abolished,  because  it 
has  been  and  is  in  itself  a  source  of  positive  danger.  The 
history  of  the  operation  of  the  electoral  machinery  shows 
that  this  vicarious  method  of  choosing  a  President  is  be- 
set by  difficulties  and  perils,  which,  numerous  as  experi- 
ence has  shown  them  to  be,  have  not  exhausted  their 
malign  possibilities.  Those  who  regard  the  electoral  col- 
leges as  merely  useless,  and  who  would  not  lay  profane 
hands  upon  the  sacred  ark  of  the  Constitution,  need  to 
have  the  lesson  emphasized  that  the  system  is  fraught 
with  dangers  and  that  it  is  the  one  vulnerable  feature  of 
the  organic  law.  At  the  outset  is  the  liability  to  error  in 
the  selection  of  electors.  Names  of  persons  constitution- 
ally disqualified  to  hold  the  office  have  been  placed  upon 
the  electoral  ballot ;  errors  often  creep  into  the  printing 
of  the  names,  and  with  the  wide  diffusion  of  the  Austra- 
lian-ballot system  voters  are  found  to  be  inept  in  marking 
the  candidates  of  their  choice.  As  Morton  once  said : 
"While  nobody  would  mistake  the  names  of  Grant  or 
Greeley,  changes  in  the  names  on  the  long  list  of  electors 
may  occur  from  errors  in  printing  or  fraud  sufficient  to 
reverse  the  vote  of  a  State. '  *  The  liability  to  error  would 
be  reduced  to  a  minimum  if  the  voter  were  to  vote  direct 
for  Cleveland  or  Harrison,  Parker  or  Roosevelt.  Igno- 
rant voters  have  often  erased  from  the  ballot  the  names  of 
electors  offensive  or  unknown  to  them,  thereby  uncon- 
sciously impairing,  if  not  vitiating,  their  vote.  (^A  system 
which  allows  so  large  a  margin  of  erroneous  votes  stands 
condemned  by  the  possibility  that  the  election  may  turn 
upori  the  ignorance  of  voters,  and  not  upon  the  popular 
will.'/  The  expense  of  canvassing  is  increased  by  count- 

^  The  New  York  Evening  Fos^,  in  an  editorial  on  "The  Useless  Elec- 
toral College,"  recently  said:  "Under  the  extraordinary  ballot  law  [of 
Florida],  the  names  of  these  twenty  electoral  candidates  were  printed  in  a 
close  column  one  below  the  other,  with  no  line  or  space  to  separate  the 
parties  ;  and  no  name,  emblem,  or  other  indication  to  show  by  which  party 


A  Suggested  Remedy  393 

ing  a  large  list  of  electoral  candidates:  and  when  the 
returns  have  been  completed,  there  arises  the  possibility 
of  contest  over  disqualified  electors.  The  law  of  1887, 
by  enlarging  the  interval  between  the  date  of  the  popu- 
lar election  and  of  the  assembling  of  the  electoral  colleges, 
— with  the  beneficent  purpose  of  allowing  adequate  time 
for  the  determination  of  bona  fide  controversies, — incites 
to  the  creation  of  spurious  contests,  by  furnishing  a  gen- 
erous measure  of  time  for  partisan  animosity  or  disap- 
pointed ambition  to  conjure  up  false  issues.  Neither 
State  nor  congressional  legislation  has  yet  determined 
whether  the  prohibition  of  the  Federal  Constitution 
against  electors  disqualified  by  its  provisions  is  self- 
executing,  or  whether  a  de  facto  elector,  appointed  in 
disobedience  of  the  nation's  organic  law,  becomes,  by 
the  fact  of  his  election  by  the  people  in  ignorance  of  his 
ineligibility,  an  elector  de  jure.  Controversies  over  elec- 
tors will  never  be  causelessly  initiated,  for  the  American 
mind  is  eminently  practical,  but  should  the  nation's  vote 
hereafter  hinge  upon  the  question  of  the  eligibility  of 
electors,  it  cannot  be  predicted  whether  the  State  prima- 
rily concerned  will  try  the  question  of  title,  or  whether 
the  trial  will  be  completed  before  the  day  fixed  for  the 
meeting  of  the  electors,  or  the  question  be  reopened  in 
the  joint  meeting  of  the  two  Houses,  as  would  seem  to 
be  authorized  by  the  Act  of  1887;  nor  can  it  be  predicted 

each  candidate  was  nominated.  The  Democrat  had  to  mark  the  first  five  ; 
the  Republican,  numbers  six  to  ten  inclusive  ;  the  Populist,  numbers  eleven 
to  fifteen  inclusive,  and  so  on.  Naturally,  a  very  large  number  of  voters 
were  muddled,  and,  in  fact,  900  Democrats  out  of  27,046  ;  1650  Republi- 
cans out  of  8314  ;  689  Populists  out  of  1605,  and  1086  Socialists  out  of 
2337,  failed  to  mark  all  the  electors  of  their  parties.  ...  In  Mary- 
land, where  a  square  for  voting  all  electors  at  once  on  the  ballot  is  similar 
to  and  immediately  above  that  for  the  first  elector,  2504  Republicans  made 
the  mistake  of  voting  for  elector  number  one  only,  and  that  margin  was 
wide  enough  for  seven  Democratic  electors  to  come  in,  although  it  is  indis- 
putable that  more  Marylanders  tried  to  vote  for  Mr.  Roosevelt  than  for 
Mr.  Parker." 


394  The  Electoral  System 

upon  what  principles  a  contest  would  be  settled.  The 
subject  of  filling  vacancies  in  the  electoral  colleges  sug- 
gests many  perturbing  inquiries.  If  an  appointment 
were  void  ab  initio,  would  a  vacancy  exist?  If  an  elec- 
tor should  die  on  or  before  the  date  of  the  popular  elec- 
tion, would  a  vacancy  be  created  that  an  electoral  college 
might  fill?  The  statutes  of  the  States  differ  in  their 
phraseology  as  to  the  filling  of  vacancies,  and  may  be 
variously  construed.  No  tribunal,  State  or  Federal, 
exists  to  solve  any  of  the  numerous  perplexing  questions, 
and  if  another  disputed  election  should  occur  either  Con- 
gress would  arbitrarily  settle  the  dispute  by  a  species  of 
ex  post  facto  legislation,  or  the  two  Houses  would  be 
deadlocked  in  a  hopeless  antagonism  of  opinion.  The 
danger  of  fraud,  corruption,  or  abuse  of  trust  on  the  part 
of  an  elector  will  be  perennial,  for  evidence  of  past  good 
faith  ensures  no  immunity  for  the  future.  As  the  num- 
ber of  States  increases,  the  expense  of  convoking  elec- 
toral colleges  grows  more  burdensome,  and  the  chance 
remains  that  a  disaster  such  as  befell  Wisconsin  in  1857 
may  be  repeated.  One  catastrophe  might  sweep  away 
all  the  members  of  an  electoral  college,  leaving  no  one  to 
supply  their  place.  Furthermore,  the  temptation  to 
create  new  States  for  partisan  purposes,  so  potent  of  late 
years,  would  cease  under  the  proposed  system.  Again, 
rival  electoral  certificates  might  reach  the  national  capi- 
tal, and  while  there  would  remain  the  possibility  of  dis- 
cordant claims  regarding  the  vote  of  a  State,  the  chances 
of  conflict  would  be  greatly  diminished.  The  whole 
subject  of  the  electoral  count  at  Washington  is  involved 
in  difficulties,  and  although  momentous  consequences 
may  depend  upon  the  settlement,  all  questions  must  be 
determined  without  debate. 

Other  defects  exist  in  the  provisions  of  the  Constitu- 
tion touching  the  election  of  President,  and  the  necessity 
for  the  removal  of  these  defects  reinforces  the  argument 


A  Suggested  Remedy  395 

for  amendment.  Apart  from  the  question  of  the  power 
of  Congress  to  concentrate  in  itself  by  disfranchising 
States  the  final  right  to  choose  a  President ;  aside  from 
the  enigma  that  has  perplexed  the  statesmen  of  every 
epoch — how  to  provide  an  umpire  when  the  two  Houses 
disagree  as  to  the  reception  of  the  vote  of  a  State, — a 
question  of  the  highest  import  arises  at  the  threshold  of 
the  electoral  structure.  Has  the  Federal  Constitution, 
in  prescribing  that  each  State  may  appoint  electors  in 
such  manner  as  the  Legislature  of  the  State  may  direct, 
so  exalted  the  law-making  body  of  the  State  above  the 
State  and  its  people  that  the  Legislature  may  defy  the 
injunctions  of  the  State  constitution  and  appoint  electors 
in  any  manner  it  may  please?  The  Legislature  of  any 
State  in  the  Union  may  at  any  time,  said  Morton,  take 
away  from  the  people  of  that  State  the  privilege  of  voting 
for  presidential  electors,  and  no  provision  of  the  State 
constitution  can  successfully  prevent  it  from  doing  so. 
Morton's  colleagues  upon  the  Senate  committee  that 
reported  the  proposed  constitutional  amendment  of  1874 
evidently  agreed  with  him,  for  the  view  of  the  com- 
mittee was  that 

**  the  appointment  of  electors  ...  is  conferred  upon  the 
Legislatures  of  the  States  by  the  Constitution  of  the  United 
States,  and  cannot  be  taken  from  them  or  modified  by  their 
State  constitutions  any  more  than  can  their  power  to  elect 
Senators  of  the  United  States,  and  that  under  the  Constitution 
as  it  now  stands  it  is  in  the  power  of  any  legislature  to  repeal 
all  laws  providing  for  the  election  of  electors  by  the  people, 
and  take  such  election  into  their  own  hands.  It  may  be  said 
this  is  not  likely  to  be  done;  but  the  answer  is,  that  it  may  be, 
and  that  it  has  been  done;  and  who  can, tell  what  may  be  the 
future  exigencies  of  parties  and  politicians,  or  what  they  may 
not  do." 

To  be  chosen  by  the  electors  a  candidate  must  have  a 
majority  of  the  electors  who  have  been  appointed,  and  if 


39^  The  Electoral  System 

no  one  has  such  majority,  the  House  is  immediately  to 
proceed  to  the  election,  but  is  to  vote  by  States.  What 
body  is  to  decide  who  are  the  duly  appointed  electors  or 
whether  a  candidate  has  the  suffrages  of  a  majority  of 
such  electors?  Again,  what  authority  is  to  determine 
when  the  moment  has  arrived  for  the  exercise  *of  the 
constitutional  obligation  reposed  in  the  House  to  make 
the  choice  of  the  chief  executive?  The  "reticence  "  of 
the  Constitution  is  not  only  perplexing,  but  perilous  as 
well.  In  the  light  of  its  Delphic  brevity,  it  is  not  re- 
markable that  entire  control  over  the  electoral  count  for 
President  has  been  claimed  for  the  House  alone,  on  the 
ground  that,  unless  it  have  this  power,  it  can  never 
decide  when  its  function  of  President-maker  is  to  be- 
gin. The  outgoing  not  the  incoming  House  makes  the 
choice.  The  choice  is  by  States.  The  injustice  of  this 
method  of  choice  has  frequently  been  exposed  and  the 
method  has  found  few  defenders.  It  enables  States 
representing  a  minority  of  the  population  to  choose,  and 
the  selection  is  entrusted  to  a  House  that  may  be  in  the 
control  of  a  party  defeated  in  the  preceding  election.  As 
two-thirds  of  the  States  are  needed  for  a  quorum,  a  revo- 
lutionary body  could  defeat  any  election.  Only  once 
since  the  passage  of  the  Twelfth  Amendment  has  the 
election  devolved  upon  the  House  and  if  the  testimony  of 
historians  and  statesmen  is  to  be  credited,  no  one  wishes 
to  see  an  occasion  arise  for  invoking  this  method  again. 
Twice  in  the  history  of  the  country  have  there  been 
prominent  candidates  threatening  so  to  divide  the  elec- 
toral vote  as  to  prevent  any  one  of  them  from  having  a 
majority.  This  actually  happened  in  1824,  and  might 
easily  have  occurred  in  i860.  It  is  a  mathematical  pos- 
sibility, and  not  a  remote  probability,  that  four  candi- 
dates should  have  an  equal  share  of  the  electoral  votes, 
or  that  there  might  be  a  tie  between  the  third  and 
fourth,  and  no  candidate  have  a  majority  of  the  votes. 


A  Suggested  Remedy  397 

If  such  an  exigency  should  arise  under  the  existing  Con- 
stitution, no  easy  solution  would  be  attainable ;  apparently 
there  could  be  no  election  whatsoever,  for  the  Constitu- 
tion would  permit  the  House  to  vote  for  only  three 
candidates,  although  all  four  would  morally  be  equally 
entitled  to  ballots  in  the  House.  If  the  last  two  should 
both  be  treated  as  within  the  category  of  the  highest 
three,  who  could  be  voted  for  if  three  or  four  candidates 
had  the  same  number  of  votes?  Should  those  having  the 
same  number  of  votes  be  treated  as  one  in  effect  in  order 
that  two  other  candidates  might  be  permitted  to  enter 
the  contest?  Would  the  Vice- President-elect,  in  such  a 
case,  become  President?  But  if  more  than  two  candi- 
dates for  the  office  of  Vice-President  should  have  the 
same  number  of  electoral  votes,  the  Senate  would  be 
paralyzed,  and  could  not  constitutionally  proceed  with  its 
elective  functions. 

If  the  President-elect  should  die  or  become  mentally 
impaired  before  assuming  office,  the  question  would  at 
once  arise  whether  the  Constitution  provides  for  such  a 
contingency,  and  the  doubt  expressed  as  to  the  meaning 
of  "inability,"  and  how  inability  itself  is  to  be  deter- 
mined, offers  some  idea  of  the  divergences  of  view  that 
would  arise  in  such  a  case.  My  own  opinion  is  that  an 
amendment  is  necessary  to  cover  this  contingency. 

If  the  electoral  system  should  be  abolished,  how  is  the 
presidential  election  to  be  held — shall  State  independence 
be  so  far  surrendered  as  to  permit  the  people  of  the  nation 
to  vote  en  masse  for  the  chief  executive?  Such  a  change 
would  be  revolutionary.  The  inquiry  whether  it  would 
be  desirable  is  rendered  unnecessary  by  the  simple  fact 
that  the  requisite  number  of  States  would  never  con- 
sent. It  is  useless  to  think  of  securing  the  approval, 
by  three-fourths  of  the  States,  of  an  amendment  which 
would  deprive  them  of  their  present  influence  as  inde- 
pendent entities  in  the  Federal  republic.    Twelve  States 


1/ 


39^  The  Electoral  System 

could  defeat  the  proposition;  hence  it  should  be  dis- 
missed as  illusory.  Chancellor  Kent,  in  opposing  the 
extension  of  the  suffrage  in  the  New  York  constitutional 
convention  of  1821,  eloquently  said  that  if  the  enlarge- 
ment were  made  the  privilege  could  never  be  recalled, 
for  "there  is  no  retrograde  march  in  the  rear  of  democ- 
racy." So,  likewise,  the  power  at  present  reserved  to 
the  States  by  the  Constitution  will  never  be  voluntarily 
surrendered.  The  small  States  will  never  consent  to  im- 
molation or  agree  upon  any  self-denying  ordinance. 

The  only  other  modes  of  election  that  preserve  the 
rights  of  the  States  are  the  general-ticket  system,  the  dis- 
trict system,  and  the  apportionment  plan,  with  an  assign- 
ment to  each  State  of  the  same  quota  of  electoral  influence 
as  it  now  enjoys  through  its  electoral  college.  I  have 
heretofore  traced  the  rise,  and  pointed  out  the  defects, 
disadvantages,  and  gross  injustice  of  the  general-ticket 
system  of  appointing  electors, — a  system  that  ever  since 
its  adoption  has  been  condemned  by  statesmen  of  the 
rank  of  McDufifie,  Benton,  Van  Buren,  Morton,  by  nu- 
merous writers  upon  constitutional  law,  and  by  no  one 
more  convincingly  than  by  Madison.  Its  effect  has  been 
to  stifle  the  voice  of  minorities,  to  dev^^p  a  class  of  per- 
nicious leaders  in  the  different  States,  to  create  what  have 
come  to  be  known  as  "doubtful"  States,  to  reduce  the 
election  merely  to  a  contest  in  such  States,  and  to  aggra- 
vate the  tendency  to  the  commission  of  frauds  of  all  sorts 
upon  the  ballot-box,  with  resulting  debauchment  of  the 
electorate  and  debasement  of  the  exalted  privilege  of 
suffrage.  So  long  as  the  States  control  the  appointment 
of  presidential  electors,  which  they  will  continue  to  do 
until  the  Constitution  shall  be  amended,  uniformity  in 
the  method  of  appointment  is  not  assured  of  perpetua- 
tion, for  political  exigencies  may  bring  about  a  change  in 
any  State  at  any  time,  and  the  constitution  of  a  State,  in 
the  judgment  of  some  of  our  ablest  public  men,  cannot 


A  Suggested  Remedy  399 

interpose  a  bar.  One  recent  infraction  of  the  prevalent 
general-ticket  system  occurred  a  few  years  ago  in  Michi- 
gan. If  it  be  asked  whether  a  recurrence  to  the  district 
system  will  redeem  presidential  elections  from  the  dangers 
by  which  they  are  environed  under  the  general-ticket  sys- 
tem, the  answer  is  unsatisfactory.  Despite  the  manifest 
improvement  of  a  uniform  district  system  upon  the  exist- 
ing plan — the  fairer  opportunity  it  gives  for  the  utterance 
of  the  electoral  sentiment  of  the  State,  and  the  great 
obstacles  it  places  in  the  way  of  successful  frauds  upon 
the  suffrage  by  making  the  purchase  of  voters  resident  in 
different  districts  essential  to  their  consummation — the 
fact  remains  that  the  district  is  an  arbitrary  unit  in  the 
choice  of  President,  and  that  human  ingenuity  has  yet 
devised  no  plan  to  circumvent  partisan  change  and  re- 
arrangement of  districts  at  the  caprice  of  the  party  in 
power.  An  objection,  not  altogether  untenable,  made 
some  years  ago  to  the  district  system  by  Senator  Ed- 
munds, in  a  criticism  upon  the  report  of  the  Morton  com- 
mittee upon  the  constitutional  amendment  proposed  by 
that  committee  in  1874,  is  that  it  would  in  effect  make 
the  choice  of  the  executive  purely  national.  Such  a 
choice  would  become  "the  act  of  the  people  in  their  in- 
dividual character  as  citizens  of  the  United  States,  with 
substantially  the  same  force  as  if  no  State  lines  existed. 
If  the  districts  were  formed  without  regard  to  State  lines 
the  plan  would  be  essentially  the  same."  The  full  force 
of  this  assertion  is  impaired  by  the  fact  that  each  State 
would  add  its  two  electoral  votes  to  the  strength  of  the 
candidate  who  carried  the  majority  of  its  districts.  But 
no  such  objection  can  fairly  be  made  to  the  system  herein 
advocated,  for  under  that  system  the  voters,  in  every 
sense,  remain  voters  in  their  respective  States,  and  the 
choice  is  still  determined  within  State  lines. 

The  plans  of  Benton,  Morton,  and  Maish,  which  may 
be  treated  as  types,  have  been  subjected  to  analysis,  and 


400  The  Electoral  System 

their  defects  have  been  exposed.  The  district  system, 
commended  by  the  fact  that  it  was  favored  in  the  con- 
vention of  1787  and  supported  later  by  Jefferson  and 
Madison,  although  greatly  diminishing  the  incentive  to 
corruption  and  bribery  of  voters,  still  fails  of  the  ideal 
through  its  susceptibility  to  gerrymandering.  It  would 
have  the  great  advantage  of  bringing  the  executive  and 
the  lower  House  of  Congress  into  complete  political 
accord,  and  the  establishment  of  this  rapprochement 
would  be  a  decided  political  gain.  An  executive  out 
of  sympathy  with  the  House  and  the  Senate  can  accom- 
plish Httle,  whereas  if  affinity  exists  between  him  and  the 
popular  chamber,  the  Senate  is  not  likely  to  prove  an 
obstacle  to  needed  legislation.  On  the  other  hand,  the 
apportionment  or  proportional  plan  would  give  every 
voter  his  due  weight  as  an  electoral  factor,  and  by  elimi- 
nating the  possibility  of  successful  frauds  would  take 
away  the  temptation  to  their  commission.  The  plan  has 
been  so  modified  as  to  insure  the  certainty  of  an  elec- 
tion and  the  finality  of  the  count.  Nor  does  it  seriously 
derange  the  harmony  between  the  President  and  the 
House  which  the  district  method  would  assure  and  which 
is  so  eminently  desirable  for  efficient  legislative  and  ad- 
ministrative procedure. 

No  amendment  will  be  complete  which  neglects  to  pro- 
vide an  effectual  method  for  the  settlement  of  all  disputes 
arising  upon  the  electoral  count.  No  statesman  who  has 
ever  given  adequate  thought  to  this  subject  has  failed  to 
express  his  conviction  that  the  present  mandate  of  the 
Constitution,  "and  the  votes  shall  then  be  counted,"  is 
an  enigma  pregnant  with  evil  possibilities.  When  the 
Morton  electoral  bill  of  1873  was  debated  in  the  Senate, 
— and  that  debate  was  exhaustive, — even  its  staunchest 
champions  admitted  its  imperfections;  and  the  Act  of 
1887,  which  is  generally  similar  in  its  tenor,  but  fuller 
of  detail,  could  not  escape  like  criticism.     Its  strongest 


A  Suggested  Remedy  401 

advocates  conceded  that  it  was  far  from  realizing  the 
ideal.  It  supplies  no  ultimate  arbiter  where  the  two 
Houses  disagree,  and  undermines  the  independence  of  the 
executive  department  by  placing  the  election  eventually 
in  Congress.  Almost  every  writer  who  has  treated  of  the 
electoral  system,  from  the  time  of  Kent  onwards,  has  re- 
garded the  defective  provisions  touching  the  electoral 
count  as  the  danger-spot  in  an  otherwise  almost  perfect 
Constitution.  There  is  not  another  clause  of  the  organic 
law  that  has  been  so  repeatedly  discussed,  or  that  has 
so  obstinately  refused  to  yield  up  its  actual  meaning 
to  profound  analysis.  Senator  Morgan,  of  Alabama,  in 
October,  1881,  uttered  the  abiding  conviction  of  every 
thoughtful  student  of  the  Constitution,  when  he  declared 
that,  although  for  a  century  the  people  and  Congress  had 
been  considering  how  they  could  best  provide  for  "a  free 
ballot  and  a  fair  count"  of  the  votes  of  the  electors  for 
President  and  Vice-President,  "not  one  hair's-breadth  of 
actual  progress  has  been  made  toward  a  solution  of  the 
real  difficulties  to  be  met."  '  The  subject,  he  added,  "has 
been  discussed  until  it  would  overtax  the  most  subtle 
mind  to  conceive  of  any  phase  of  any  question  connected 
with  the  matter  that  has  not  been  considered."  And  his 
conclusion  well  expresses  the  reasoning  that  induced  a 
majority  of  the  Senate  in  March,  1876,  foreseeing  the 
trouble  that  arose  during  the  following  winter,  to  agree 
to  the  Morton  bill,  and  that  subsequently  impelled  both 
Houses,  with  the  startling  experience  of  the  disputed 
election  fresh  in  memory,  to  agree  to  the  imperfect  solu- 
tion that  has  become  the  law  of  1887, — that  "any  adjust- 
ment of  the  difficulties  which  grow  out  of  our  imperfect 
constitutional  provisions  on  this  subject,  if  generally 
accepted  as  being  fair,  would  be  better  than  to  leave  it 
without  any  sort  of  regulation."  "It  should,"  Morgan 
admonished,  "be  enough  to  say  to  a  wise  people  that  all 

'  "  Some  Dangerous  Questions,"  133  N.  A.  J^.,  324. 


402  The  Electoral  System 

questions  are  open  and  dangerous  that  relate  to  the 
counting  of  the  votes  of  electors.  They  are  as  numerous 
as  it  is  possible  for  the  ambition,  the  cupidity,  the  fraud, 
and  the  skill  of  wicked  men  to  invent."  Dawes,  of  Mas- 
sachusetts, who,  as  a  member  of  the  Senate  in  the  spring 
of  1876,  voted  reluctantly  for  the  Morton  Electoral  Count 
bill,  after  announcing  his  conviction  that  the  only  effec- 
tive remedy  lay  in  a  constitutional  amendment,  in  a  sub- 
sequent magazine  article  used  these  impressive  words : ' 

"It  is  the  height  of  folly  to  shut  our  eyes  to  this  danger 
And  it  is  useless  to  seek  in  argument  a  satisfactory  answer  to 
these  questions.  The  public  mind  will  always  divide  upon 
them.  The  only  safe  solution  of  the  problem  is  their  removal 
by  a  constitutional  amendment  that  shall  make  plain  and  sim- 
ple every  step  in  the  process,  both  State  and  national,  and 
shall  also  require  or  create  a  tribunal  in  each  State  competent 
to  settle  finally  any  possible  controversy  over  the  appointment 
of  electors  or  their  action  till  the  record  of  what  they  do 
reaches  some  national  official." 

Every  attempt  to  solve  the  problem  should  be  predi- 
cated upon  the  teaching  of  history.  Politics,  as  Burke 
very  philosophically  said,  ought  to  be  adjusted,  not  to 
human  reasoning,  but  to  human  nature.  Human  nature 
in  the  United  States  has  for  more  than  a  century  been 
shaping  our  political  institutions,  and  the  trend  of  their 
development  must  be  accepted  as  indisputable  political 
facts  in  the  framing  of  any  amendment.  At  the  very 
outset  the  separate  independent  life  of  the  States  must 
be  recognized,  and  all  notion  of  a  vote  by  the  united  citi- 
zenship of  the  country  regardless  of  State  lines  be  dis- 
missed. The  inequalities  of  representation  between  large 
and  small  States  are  conceded,  but  must  also  be  accepted. 
The  spirit  of  compromise  which  swayed  the  proceedings 
of  the  convention  of  1787  must  animate  twentieth-century 

1  "  How  Shall  the  President  be  Elected  '"  140  N.  A.  R.,  97. 


! 


A  Suggested  Remedy  403 

deliberations.  Whether  parliamentary  government  or 
presidential  government,  to  use  Walter  Bagehot's  famous 
contrast,  be  ideally  the  better,  whether  an  executive 
elected  and  removable  by  Congress  would  secure  more 
efficient  political  results, — unless  the  present  sentiment 
of  the  American  people  is  a  reversion  from  the  ideas  of 
the  framers  of  the  Constitution,  there  must  be  adherence 
to  their  conception  of  the  wisdom  of  the  severance  of  ex- 
ecutive, legislative,  and  judicial  functions.  The  develop- 
ment of  American  institutions  has  been  along  this  theory, 
and  it  is  not  possible  in  a  short  space  of  time  to  revolu- 
tionize the  ideas  of  a  whole  people.  Hence  the  amend- 
ment should  maintain  the  separateness  of  the  three  great 
departments  of  government,  and  preclude  the  possibility 
of  any  invasion  by  Congress  of  the  executive  department, 
in  the  choice  of  the  executive  head  of  the  nation.  The 
electoral  system  has  taught  the  peril  of  complicated 
machinery  in  politics;  the  change  should  therefore  be  in 
the  direction  of  simplicity.  As  democracy  early  revolted 
against  the  tyranny  of  autocratic  electors  and  has  com- 
pletely subjugated  them  to  its  purposes,  the  election 
should  be  direct  for  President  and  Vice-President.  Every 
citizen  should  be  privileged  to  cast  his  ballot  directly  for 
the  candidate  of  his  choice.  The  practical  sense  of  the 
American  people  will  never  tolerate  in  any  amendment 
the  interposition  of  any  further  electoral  medium  between 
themselves  and  the  manifestation  of  their  will.  Inas- 
much as  the  Constitution  intended  that  the  States  should 
have  sole  control  over  the  appointment  of  electors,  pro- 
vided ineligible  electors  were  not  appointed,  and  that  the 
election  should  be  held  on  the  appropriate  day,  and  in- 
asmuch as  the  whole  tenor  of  our  political  history  evinces 
the  desire  of  the  people  of  the  States  to  act  in  their  capac- 
ity of  citizens  of  States  in  voting  at  presidential  elections, 
State  control  should  continue  absolute.  This  the  pro- 
posed amendment  assures.     The  essential  nature  of  our 


404  The  Electoral  System 

complex  government  is  to  suffer  no  manner  of  change. 
The  people  qualified  by  the  laws  of  the  States  to  vote 
for  presidential  electors  should  vote  for  President  direct, 
and  their  qualifications  to  exercise  the  elective  fran- 
chise should  not  be  subjected  to  authority  of  Congress, 
except  in  so  far  as  such  authority  may  have  been  com- 
mitted to  the  national  legislature  by  any  of  the  recent 
amendments  to  the  national  Constitution.  The  count 
and  the  canvass  of  the  vote  must  remain  the  exclusive 
duty  of  the  State.  The  majority  of  the  Electoral  Com- 
mission of  1877  were  in  accord  with  the  essential  theory 
of  the  Government  when  they  pronounced  that,  once  the 
final  State  canvassing  authority  had  spoken,  its  deter- 
mination was  beyond  impeachment  or  even  challenge  by 
any  department  of  the  central  Government.  And  the 
only  duty  that  will  devolve  upon  that  Government  should 
be  the  simple,  impressive  act  of  enumeration  of  plain  re- 
turns, crowned  by  an  act  the  most  important  of  all  for 
the  peace  and  security  of  the  nation,  the  declaration  of 
the  result, — a  declaration  which,  once  made,  may  never 
be  controverted  except  by  successful  revolution. 

Such  an  amendment  I  have  aimed  to  draft.  It  makes 
but  the  slightest  departure  from  the  theory  of  the  exist- 
ing Constitution.  It  redeems  the  count  from  intricacy 
and  rescues  it  from  the  domination  of  Congress.  That 
it  very  much  reduces  the  likelihood  of  double  returns  has 
heretofore  been  shown,  and,  as  I  have  said,  if  a  State 
should  be  guilty  of  the  folly  of  transmitting  more  than 
one  return,  her  disfranchisement,  if  that  consequence 
had  to  follow,  would  be  the  result  of  her  own  act  and 
not  of  the  arbitrary  action  of  Congress.  Criticism  of  the 
constitutional  system  has  usually  been  quadrennial. 
Public  attention  has  not  been  vividly  attracted  to  the 
defects  which  have  been  noted  in  earlier  chapters.  These 
should  be  rectified  before  another  presidential  election. 
Nothing  but  failure  to  appreciate  the  weakness  of  the 


A  Suggested  Remedy  405 

Constitution,  an  irrational  veneration  for  its  letter,  or  an 
undue  spirit  of  conservatism,  forbids  a  prompt  and  effec- 
tive remedy. 

In  discussing  the  English  constitution,  Professor  Dicey 
eulogizes  the  complete  flexibility  of  an  unwritten  organic 
law  like  that  of  Great  Britain.  The  constitutions  of  most 
of  the  States  of  the  Union,  open  to  amendment  through 
the  agency  of  a  general  convention  or  upon  legislative 
initiative,  with  subsequent  ratification  by  the  people, 
approximate  closely  to  the  mobility  that  distinguishes  an 
unwritten  constitution.  Much  has  been  written  of  late 
regarding  rigid  constitutions,  but  there  is  no  less  viability 
in  the  Federal  Constitution,  although  the  faculty  of  re- 
vision has  become  almost  lost  by  disuse.  As  early  as 
1823  Jefferson  declared  that  the  States  had  become  so 
numerous  that  there  was  little  likelihood  of  procuring 
amendment.'  As  the  States  increase  in  number,  the 
tendency  towards  rigidity  grows  stronger,  and  the  ability 
to  amend  decreases.  Beyond  the  first  ten  amendments, 
which  may  almost  be  treated  as  part  of  the  original  text, 
only  two  amendments  have  been  peacefully  effected  to 
the  Constitution :  the  eleventh,  which  declared  that  no 
State  should  be  subject  to  suit  by  a  citizen  of  another 
State  or  of  a  foreign  State,  and  the  twelfth,  the  urgent 
need  of  which  was  demonstrated  by  the  presidential  elec- 
tion of  1 801.  The  three  succeeding  amendments  were 
only  possible  as  the  outcome  of  a  civil  war  in  which  the 
integrity  of  the  nation  hung  in  the  balance.  The  longer 
the  task  of  amendment  is  postponed,  the  more  difficult 
it  will  be  found  to  accomplish  it.     Distrust  of  underlying 

^  Washington,  in  his  correspondence,  more  than  once  admitted  that  the 
Constitution  was  not  "  free  from  imperfections,"  although  there  were  "  as 
few  radical  defects  in  it  as  could  well  be  expected,  considering  the  hetero- 
geneous mass  of  which  the  convention  was  composed,  and  the  diversity 
of  interests  that  are  to  be  attended  to."  It  was  his  reliance  upon  the 
power  to  make  future  amendments  which  induced  him  to  urge  acceptance 
of  the  convention's  work. 


4o6  The  Electoral  System 

social  forces  may  repel  many  from  making  any  change, 
lest  the  temptation  to  untimely  alteration  prove  over- 
whelming. But  the  fear  of  uncertain  evil  should  not 
deter  a  wise  and  practical  people  from  effecting  redress 
for  the  positive  ills  of  the  electoral  system ;  for  the 
timidity  involves  the  confession  that  the  genius  for 
constructive  government,  which  was  one  of  the  noblest 
characteristics  of  our  forefathers,  has  departed  from  the 
American  people.  Great  as  was  the  work  of  the  conven- 
tion of  1787,  the  wisdom  with  which  its  members  were 
endowed  was  self-confessedly  mundane.  They  used  the 
provision  for  amendment  effectively,  and  doubtless  ex- 
pected that  it  would  be  employed  when  needed  by  their 
successors.  Prudence  dictates  that  long-established 
governments  should  not  be  changed  for  light  or  transient 
causes,  but  when  the  evils  of  a  system  are  plain  and  the 
dangers  of  its  continuance  demonstrable  by  actual  expe- 
rience, a  remedy  is  demanded.  Public  sentiment,  as 
Burke  well  observed,  should  be  the  sole  source  of  altera- 
tion in  law,  and  a  wise  conservatism  waits  until  that  sen- 
timent speaks  in  imperative  tones.  But  if  any  truth  is 
revealed  in  our  political  history  and  proclaimed  in  the 
opinions  of  numerous  statesmen  and  patriots,  it  is  that 
the  electoral  system,  adopted  by  the  fathers  with  much 
misgiving  and  after  profound  differences  of  opinion,  has 
never  fulfilled  the  original  design  of  its  creators.  If  dis- 
aster shall  ever  overtake  the  republic,  it  will  probably 
come  from  our  neglect  of  the  solemn  and  oft-repeated 
admonitions  regarding  the  difficulties  and  dangers  con- 
nected with  the  electoral  count.  When  the  voice  of 
experience  is  so  impressive  in  its  warnings,  to  heed  it 
becomes  a  sacred  duty.  Nor  can  reliance  be  placed  upon 
judicial  interpretation  to  render  the  process  of  amend- 
ment unnecessary.  Although  other  provisions  of  the 
Constitution  grow  in  stature  and  significance  under  con- 
struction by  the  courts,  the  clauses  relating  to  the  election 


A  Suggested  Remedy  407 

of  President  and  Vice-President  constitute  exceptions  to 
the  rule,  for  they  can  rarely  become  the  subject  of  judi- 
cial exegesis.  There  has  been  but  one  decision  of  the 
Supreme  Court  upon  the  presidential  electoral  system  in 
one  hundred  years. 

As  to  the  method  of  initiating  an  amendment,  a  word 
may  be  added  in  conclusion.  Proposed  amendments 
have  usually  been  presented  in  Congress  as  the  outcome 
of  resolutions  in  some  State  Legislature,  or  of  the  views 
of  some  individual  member  of  the  Senate  or  House. 
Ordinarily  these  proposals  have  occasioned  little  discus- 
sion. Upon  a  subject  of  such  importance,  the  sugges- 
tion of  President  Harrison,  in  his  message  to  Congress 
in  1 891,  might  be  made  the  basis  of  action.  In  advocat- 
ing the  establishment  of  the  general-ticket  system  upon 
a  constitutional  foundation,  he  favored  the  appointment 
of  a  commission,  non-partisan  in  its  membership,  **  to  be 
charged  with  the  duty  of  inquiring  into  the  whole  sub- 
ject of  the  law  of  elections  as  related  to  the  choice  of 
officers  of  the  national  Government,  with  a  view  to 
securing  to  every  elector  a  free  and  unmolested  exercise 
of  the  suffrage,  and  as  near  an  approach  to  an  equality  of 
value  in  each  ballot  cast  as  is  obtainable."  An  amend- 
ment originating  in  a  commission  of  such  a  nature  would 
probably  elicit  wide  discussion.  President  Harrison  sug- 
gested the  appointment  of  a  commission  by  the  Supreme 
Court,  but  there  seems  no  valid  reason  why  the  executive 
should  not  name  it.  The  commission  should  then  re- 
port to  Congress.  Many  amendments  to  State  con- 
stitutions, notably  to  the  constitution  of  New  York,  have 
had  their  genesis  in  similar  commissions. 


I 


INDEX 


Abbott,  Josiah  G.,  M.  C.  Mass. 
Appointed  member  of  elec- 
toral commission  by  H.  of  R., 
135;  opinion  in  Florida  case, 
150,  151 ;  in  Louisiana  case, 
176;  in  Oregon  case,  199;  in 
South  Carolina  case,  206 

Act  of  Congress,  March  i,  1792, 
4,  29;  January  23,  1845,  31,  74; 
January  30,  1877  (electoral 
commission  law),  9,  10;  Feb- 
ruary 3,  1887  (governing  elec- 
toral count),  214;  Int.  3,  6,  9 

Adams,  Charles  Francis,  Seward 
to,  12 

Adams,  John,  Int.  4;  three 
Democratic  electors  voted 
for,  1796,  18;  electoral  vote 
for,  1793,  33;  1797,  33',  pre- 
sides at  joint  meeting  of  the 
two  houses,  February,  1797, 
34;  electoral  vote  for,  1801, 
34;   other   references,  252 

Adams,  John  Quincy,  electoral 
vote  for,  1825,  46;  vote  for  in 
House,  46,  47;  coalition  with 
Clay,  48,  260 ;  criticism  of,  by 
McDuffie,  298;  remarks  in 
Senate,  1803,  in  debate  of 
resolution  proposing  twelfth 
amendment  to  Constitution, 
275 ;  a  minority  candidate,  317, 
318 

Allen,  William  (O.),  340 

Alternative  Counts,  43,  48,  53, 
81,  226 

Amendments  to  the  Constitu- 
tion, first  ten  amendments, 
405 ;  eleventh,  twelfth,  405 ; 
war  amendments,  325,  405 

Amendments  to  the  Constitution 
(proposed,  relative  to  electoral 
system),    to    Article    XII,    in 


1876,  109;  by  Pickens,  326; 
Benton,  326,  334,  340;  Dicker- 
son,  328 ;  Van  Buren,  328 ;  Mc- 
Duffie, 328;  McComas,  340; 
Sumner,  342,  343;  Morton, 
344-48;  Maish-Buckalew,  351- 
4;  Springer,  354,  355;  Riddle, 
355;  Southard,  355-62;  J.  G. 
Carlisle,  362,  363 

Amendment,  proposed  by  author, 
analysis  and  explanation  of, 
364;  stated,  377-81 

American  Party,  320 

Anthony,  Henry  Bowne,  Senator 
from  R.  I.,  348 

Archer,  William  S.,  on  electoral 
votes  of  Missouri,  1821,  45 ;  on 
McDuf  f  ie's  amendment,  295  ; 
defender  of  general-ticket  sys- 
tem, 295,  340 

Arkansas,  electoral  vote  of, 
1873,  86,  87,  88,  346,  385 

Arnold,  Benedict,  an  electoral, 
may  come,  253 

Arthur,  Chester  A.  (N.  Y.),  In- 
galls'  view,  that  he  was  Presi- 
dent under  the  Constitution 
from  moment  of  Garfield's 
shooting,  263 

B 

Bagehot,  Walter,  government  by 
discussion,  304 ;  on  presidential 
government  and  parliamentary 
government,  403 

Baker,  John  H.  (Ind.).  Opposes 
Electoral  Commission  bill,  131 

Baldwin,  Abraham,  Delegate  to 
Convention  of  1787,  from 
Georgia;  remarks  in  Senate. 
1800,  in  opposing  Ross'  motion 
for  committee  to  draft  elec- 
toral count  bill  64,  65 ;  votes 
against  bill,  68 


409 


4IO 


Index 


Bancroft,  George,  Quotations 
from  Hist,  of  U.  S.,  14,  27  n. 

Barbour,  John  S.   (Va.),  44 

Bayard,  James  A.  (Senator  from 
Delaware,  1800),  remarks  in 
House,  on  bill  of  1800,  71,  80 

Bayard,  Thomas  F.  (Senator 
from  Delaware),  remarks  in 
Senate  on  twenty-second  joint 
rule,  95 ;  on  Morton  bill,  92, 
95,  100;  offers  amendment, 
100;  vote  on  bill,  loi ;  advo- 
cates Electoral  Commission 
bill  of  1877,  123;  appointed  by 
Senate  member  of  commis- 
sion, 135 ;  opinion,  in  Florida 
case,  149,  150;  in  Louisiana 
case,  174,  175,  182;  in  Oregon 
case,  198,  199;  in  South  Caro- 
lina case,  206,  208;  other  ref- 
erences, 24.S 

Bell,  John  (Tenn,),  popular  and 
electoral  vote  for,  i860,  310; 
successful  in  border  States, 
319,  320 

Benjamin,  Judah  P.  (La.),  re- 
marks in  Senate,  during  dis- 
cussions over  electoral  count, 
1857,  55,  246 

Benton,  Thomas  H.  (Senator 
from  Missouri), Int.  8;  electors 
pledged  from  beginning,  18, 
note  I ;  on  general  ticket  sys- 
tem, 19,  20;  reference  to,  106; 
electors  useless,  and  may  be 
dangerous,  250;  proposes 
amendment  to  Constitution, 
259,  317,  326,  334,  335;  text  of 
amendment,  336;  features  of 
plan,  337,  338;  urges  amend- 
ment December,  1833,  340;  on 
resolutions  for  amendment  of- 
fered in  Senate,  1823-4,  332, 
334 ;  other  references,  340,  341, 
342,  398,  399 

Bill  of  1800.  See  Electoral 
Count,  Bill  of  1800 

Birney,  James  G..  308,  309,  320 

Black,  Jeremiah  S.,  from  his  ar- 
ticle, "  The  Electoral  Conspir- 
acy," on  speech  of  Roscoe 
Conkling  on  Electoral  Com- 
mission bill  of  1877,  117;,  of 
counsel  before  commission, 
142,  211 


Blaine,  James  G.,  opposed  Elec- 
toral Commission  bill,  125 ; 
analysis  of  vote  in  Congress 
on  bill,  133  n. ;  opinion  re- 
garding electoral  commission, 
182 ;  popular  and  electoral 
vote  for,  in  1884,  5,  307 ;  refer- 
ences to,  308  n.,  309,  314,  315 ; 
difficulty  that  would  have 
been  caused  by  his  death,  had 
he  been  candidate  for  Presi- 
dency in  1892,  and  succeeded, 
280 

Bland,  Richard  P.  (Mo.),  on 
Electoral  Commission  bill,  132 

Boutwell,  George  P.,  a  Senator 
from  Mass.,  did  not  vote  on 
Morton  bill,  loi 

Bradley,  Joseph  P.  (Associate 
Justice  of  U.  S.  Supreme 
Court),  appointed  member  of 
electoral  commission  of  1877, 
135 ;  opinion  in  Florida  case, 
148,  155-157,  160;  in  Louisiana 
case,  177,  179-181 ;  in  Oregon 
case,  197;  in  South  Carolina 
case,  204,  205 ;  note  as  to,  212 
n. ;  electors,  party  puppets, 
250 ;  views  as  to  power  to 
count,  355 

Brearley,  David  (N.  J.),  Dele- 
gate to  Convention  of  1787, 
128 

Breckenridge,  John  C,  a  Senator 
from  Kentucky,  electoral  vote 
for,  1857,  52 ;  presides  at  elec- 
toral count,  1861,  75 ;  popular 
and  electoral  vote  for  i860, 
310,  318 

Brown,  John  (a  Senator  from 
Kentucky)  ;  remarks  in  Senate, 
in  1800,  64 

Bryce,  James,  on  general  ticket 
system,  10;  on  choice  of  Presi- 
dent by  people,  17 ;  by  Con- 
gress, 17;  views  regarding 
electors,  in  his  "Holy  Roman 
Empire,"  251 

Bryan,  WilHam  J.  (Neb.),  pop- 
ular and  electoral  votes  for. 
315,  316 

Buchanan,  James  (Pa.),  M.  C. 
1826;  popular  and  electoral 
vote  for,  52,  309,  310;  other 
references,  295,  297;  a  minor- 


Index 


411 


ity  President,  318;  other  ref- 
erences, 340 

Buckalew,  Charles  R.,  a  Senator 
from  Pennsylvania,  proposes 
amendment  to  Constitution, 
351 ;  views  on,  352-4,  357 

Burgess,  John  W.,  Prof.,  views 
of,  on  Law  of  February  3, 
1887,  227;  claims  that  Con- 
gress in  joint  meeting  has 
power  to  count  the  electoral 
vote,  218  n, ;  clauses  of  act 
"  confused  almost  unintelli- 
gible," 238  n.,  241  n. 

Burke,  Edmund,  402,  406 

Burr,  Aaron,  electoral  vote  for, 
1801,  34,  35,  36;  Coolev,  on 
vote  for,  1801,  24;  vote  for  in 
House  of  Representatives,  36 ; 
presides  at  count  of  electoral 
votes,  1805,  38,  39 

Butler,  Benjamin  F.,  on  Ed- 
munds' resolution  for  alterna- 
tive count,  Georgia's  vote, 
1869,  81;  remarks  in  joint  ses- 
sion for  electoral  count,  1869, 
82,  83 ;  in  House  of  Represen- 
tatives, during  recess,  84:  af- 
ter conclusion  of  count,  84; 
views  on  electoral  commission, 
212  n. ;  on  presidential  inabil- 
ity, 276 

Butler,  Andrew  P.  (Senator 
from  S.  C),  remarks  during 
electoral  count  of  1857,  52 


Calhoun,  John  C  (S.  C),  elec- 
toral vote  for,  as  Vice-presi- 
dent, 1825,  47;  appoints  com- 
mittee of  Senate,  332 

Campbell,  John  A.  (La.),  argu- 
ment as  counsel  in  Louisiana 
case  before  electoral  commis- 
sion, 170,  171,  172,  177,  209,  210 

Carlisle,  John  G.,  criticism  of 
act  of  February  3,  1887,  241  n., 
243  n. ;  dangerous  defects  in 
electoral  system,  241,  243  n. ;  on 
limitation,  in  Constitution,  of 
choice  for  President,  in  House 
of  Representatives,  to  highest 
three  names,  on  lists  of  elec- 


toral votes,  273,  274;  on  desi- 
rability of  amending  Constitu- 
tion by  establishing  "  appor- 
tionment plan,"  362,  363 

Carpenter,  Matthew  H.  (Wise), 
votes  in  Senate  against  Mor- 
ton bill,  92;  appears  as  counsel 
before  electoral  commission, 
142,  167,  168,  208 

Carroll,  Daniel  (Md.),  Delegate 
to  Convention  of  1787,  favors 
choice  of  President  by  people, 
13 

Cass,  Lewis  (Senator  from 
Mich.),  remarks  during  elec- 
toral count,  1857,  52;  popular 
and  electoral  vote  for,  1848, 
309 ;  other  references,  319 

Chamberlain,  Daniel  H.  (Gov- 
ernor of  South  Carolina,  1876- 
77),  202,  383 

Chandler,  Zachary  (Mich.), 
(Thairman  of  National  Repub- 
lican Committee,  1876-77,  107 

Christiancy,  Isaac  P.  (Senator 
from  Mich.),  remarks  in  Sen- 
ate on  Morton  bill,  98 

Church,  Sanford  E.  (Chief  Judge 
N.  Y.  Court  of  Appeals), 
views  of,  as  to  power  of  Con- 
gress to  go  behind  returns,  150 

Clay,  Henry,  Speaker  of  House 
of  Representatives,  1817,  40; 
resolution  as  to  counting  Mis- 
souri's votes,  1821,  43,  44;  can- 
didate for  presidency,  1825, 
46,  47,  48;  electoral  and  popu- 
lar vote  for,  47;  unjust  charge 
of  bargain  with  J.  Q.  Adams, 
48;  on  ineligible  electors,  49, 
50,  245 ;  references  to,  218, 
245,  256,  260,  298;  popular  and 
electoral  vote  for,  1832,  307; 
1844,  308,  309;  close  vote  in 
Maryland,  in  1832,  for  Jackson 
and  Clay,  374 

Clayton,  John  M.  (Del.),  340 

Cleveland,  Grover  (N.  Y.),  New 
York  vote  for,  in  1884,  3I4: 
popular  and  electoral  vote  for, 
314.  315;  further  reference  to, 
392 

Clifford.  Nathan  (Associate  Jus- 
tice U.  S.  Supreme  Court), 
appointed  a  member  of  elec- 


412 


Index 


toral  commission  of  1877,  135 ; 
opinion,  in  Florida  case,  157, 
158;  no  opinion  in  Louisiana 
or  Oregon  case,  181 

Clinton,  DeWitt  (N.  Y.),  282, 
288 

Clinton,  George  (N.  Y.),  parti- 
sans of,  in  Assembly,  1789,  20 

Colfax,  Schuyler  (Ind.),  on 
Wade's  action  as  presiding  of- 
ficer during  electoral  count, 
1869,  84 

Collamer,  Jacob  (a  Senator  from 
Vermont),  remarks  in  Senate, 
on  electoral  count,  1857,  55 

Compromise  of  1820,  114 

Conkling,  Roscoe,  Int.  10;  on 
Van  Buren  bill  of  1824,  73; 
on  electoral  vote  of  Georgia, 
1873,  88;  on  effect  of  Morton 
bill,  loi ;  votes  for  its  re-con- 
sideration, 103;  votes  against 
Morton  bill,  92,  loi ;  advocates 
Electoral  Commission  bill,  117- 
23;  Hoar's  eulogy  of,  117,  also 
348. 

Conscience  Whigs,  defeated 
Clay,  1844,  308 

Constitution  of  the  U.  S.,  its  in- 
creasing rigidity,  405 

Cooley,  Thomas  M.  (Mich.),  on 
failure  of  original  electoral 
plan,  24 ;  on  canvassing  boards, 
137;  on  presidential  inability, 
276 

Cooper,  Henry  (Senator  from 
Tenn.),  amendment  to  Morton 
bill,  97 

Cooper,  Peter  (N.  Y.),  popular 
vote  for,  313 

Cowan,  Edgar  (Senator  from 
Penn.),  remarks  in  Senate,  on 
twenty-second  joint  rule,  78, 
79;  asserts  that  it  gives  either 
house  power  to  disfranchise 
a  State,  78,  79;  as  to  votes  of 
Louisiana    and    Tennessee,    in 

-1865,  79 

Crawford,    William    H.     (Ga.), 

'^*  candidate  for  Presidency, 
1825,  46;  electoral  and  popular 
vote  for,  1825,  47;  vote  in 
House  of  Representatives  for, 
47;  contest  between  friends 
of,  and  People's  party,  N.  Y., 


282;  nominated  for  President, 
1824,  329 

Crittenden,  John  J.  (a  Senator 
from  Kentucky),  remarks  dur- 
ing electoral  count  of  1857,  52, 
53 ;  reference  to,  121,  340 

Cronin,  E.  A.  (Oregon),  refer- 
ences to,  187,  188,  189,  190, 
192,  194,  195,  197,  201 

Curtis,  George  Ticknor,  on  six- 
teenth amendment  to  Constitu- 
tion, 259;  Constitution  does 
not  embrace  vacancy  caused  by 
death  or  inability  of  President- 
elect, etc.,  271,  n. 


Dana,  Richard  H.,  Jr.,  on  scru- 
pulous fidelity  of  electors  to 
implied  obligation,  252,  253 ;  on 
fraudulent  ballots  and  general 
ticket  system,  305;  as  to  abol- 
ishing electoral  system,  344,  n. 

Davis,  David  (Associate  Justice 
U.  S.  Supreme  Court),  elected 
U.  S.  Senator  from  Illinois, 
135 ;  Ingalls  on,  220 

Davis,  Matthew  L.,  informality 
in  (Georgia's  vote,  1801,  35 

Dawes,  George  L.  (a  Senator 
from  Mass.),  on  electoral  com- 
mission law.  Int.  7 ;  remarks 
in  Senate  on  Morton  bill,  99; 
advocates  amendment  to  Con- 
stitution, 249,  402 

Dayton,  William  L.  (N.  J.),  elec- 
toral vote  for,  1857,  51,  52; 
further  reference  at,  304 

Dayton,  Jonathan  (N.  J.),  dele- 
gate to  Convention  of  1787; 
vote  in  Senate  for  bill  of  1800, 
70 

Dexter,  Samuel  (a  Senator  from 
Mass.),  remarks  in  Senate, 
1800,  on  Ross'  motion,  64 

Dibble,  Samuel  (S.  C),  on  Elec- 
toral Count  bill  of  1887,  229 

Dickerson,  Mahlon  (a  Senator 
from  N.  J.),  offers  amend- 
ment to  U.  S.  Constitution, 
1823,  328;  fear  of  large  States 
in  presidential  elections,  2^2 1 
other  references,  332,  334 


Index 


413 


Dicey^  Albert  V.,  on  the  English 
Constitution,  405 

Dickinson,  John  (Del.),  delegate 
to  Convention  of  1787,  favors 
popular  vote  for  President,  13 

District  system  of  choosing  elect- 
ors, Int.  11;  Hildreth  on,  19; 
views  of  members  of  Conven- 
tion   of    1787,    281 ;    Virginia 

'  adopted  in  1788,  283;  Massa- 
chusetts adopted,  1792,  284; 
North  Carolina,  1792,  284; 
States  electing  by,  1796,  285; 
Virginia  abandoned,  1800, 
286;  Hamilton  and  Clinton 
favored,  in  New  York,  288; 
amendment  to  establish,  of- 
fered in  Congress,  1813,  289; 
remarks  of  Pickens,  289; 
Gaston,  289;  Pickens  renews 
effort,  December,  1816,  290; 
remark  by  Erastus  Root,  290; 
by  Jabez  D.  Hammond,  290; 
McDuffie's  proposed  amend- 
ment, 1823,  291,  292,  293 ;  dis- 
cussion in  House  of  Repre- 
sentatives, 1826,  294-6;  vote 
on,  299 ;  New  York  established 
district  system,  1825,  299;  law 
repealed,  1829,  299;  reasons 
for  abandonment  of  district 
system,  299,  300;  method  not 
unconstitutional,  300;  Michi- 
gan adopted,  1891,  300;  Mc- 
Pherson  v.  Blacker,  300-02 ; 
President  Harrison  opposed 
to  district  system,  302,  n. ; 
Madison's  views,  302 ;  report 
of  select  committee  on,  to  Sen- 
ate, January,  1826,  334;  re- 
marks on,  334,  335;  Morton 
advocated  establishment  of,  by 
constitutional  amendment,  344- 
9 ;  danger  of  gerrymander,  323, 
346 ;  district  system  imperfect, 
324;  does  not  give  minority 
sentiment  complete  expression, 
324,  372 :  possibility  of  corrup- 
tion of  districts,  372 ;  oblitera- 
tion of  state  lines,  372 ;  close 
districts  might  be  contested, 
376;  would  bring  executive 
and  lower  house  into  political 
accord,  400 


Douglas,  Stephen  A.  (111.),  ref- 
erence to,  121;  popular  and 
electoral  vote  for,  i860,  310; 
divided  northern  vote  with 
Lincoln,  310;  also  318 

Duane,  William,  charges  made  in 
the  Aurora,  63 

Drew,  George  F.  (Governor  of 
Florida,  1877),  139,  140,  143 

Dwight,  Theodore  W.,  on  presi- 
dential inability,  277 


Eaton,  William  W.  (Conn.),  de- 
clares the  House  alone  has 
power  to  count  electoral  vote, 
217  and  note;  criticises  act  of 
1887,  229 

Edmunds,  George  F.  (a  Senator 
from  Vermont),  remarks  in 
Senate,  January,  1877,  27;  ex- 
plains origin  of  twenty-second 
joint  rule,  77;  offers  resolu- 
tion in  Senate,  for  alternative 
count  of  Georgia's  vote^  1869, 
81 ;  objections  during  count, 
82;  remarks,  831  amendment 
to  Morton  bill,  91;  votes 
against  Morton  bill,  92,  100; 
votes  to  reconsider,  103 ;  on 
bill  of  1800,  105 ;  on  gravity  of 
danger,  1877,  108,  109;  ap- 
pointed on  Senate  committee 
to  report  bill  as  to  electoral 
count,  109-110;  presents  report 
to  Senate,  1 10-14;  elected 
member  of  Electoral  Commis- 
sion, 134;  remarks,  Louisiana 
case,  168,  177,  195 ;  reports  an 
electoral  count  bill  to  Senate, 
1878,  215;  again,  in  1885,  217; 
argues  district  system  uncon* 
stitutional,  300;  on  gerryman- 
dering, 323 ;  would  increase 
possibility  of  disputes,  376; 
district  system  would  make 
choice  of  President  purely  na- 
tional, 399 

Eldridge,  Charles  A.  (Wis.),  on 
twenty-second  joint  rule,  85 

Electoral  College,  when  words 
were  first  used  in  debates  in 
Congress  and  in  legislation, 
74,  n. 


414 


Index 


Electoral  Commission  Bill,  of 
1877,  deadlock  between  Senate 
and  House  on  power  to  count, 
107,  108;  debate  in  Senate,  iio- 
26;  Edmunds  opens,  1 10-14; 
Morton  opposes  bill,  114,  115; 
remarks  by  Frelinghuysen, 
115;  Sherman  opposes,  116; 
Conkling  advocates,  117-23; 
opinions  on  Conkling's  speech, 
122-3;  Thurman  supports,  123; 
Morrill,  123;  Morton  replies, 
124;  Blaine  opposes,  125; 
Whyte  favors,  125,  126;  vote 
in  Senate  on,  126;  debate  in 
House,  126;  McCrary  opens, 
126;  discussion  of  bill  by  Hun- 
ton,  127;  Hoar,  127;  Hale  op- 
poses, 127,  128;  Hewitt  and 
Springer  favor^  128 ;  Garfield 
opposes,  129-31 ;  also  Mills, 
131 ;  Lamar  answers  Mills, 
131 ;  Baker  and  Watterson 
favor,  131,  132;  vote  on  bill  in 
House,  133 ;  bill  a  compromise, 
134;  views  on,  133,  134;  be- 
comes law,  134;  commissioners 
appointed,  134,  135 ;  Sherman's 
"element of  blind   chance,"  135 

Electoral  Commission  Law 
(see  Act  of  Congress,  January 
30,  1877),  135 

Electoral  Count,  Bill  of  1800. 
The  germ  of  later  provisions 
for  counting,  62 ;  originated  in 
U.  S.  Senate,  63;  history  of, 
and  discussion  in  Senate,  63, 
64,  65,  66,  67 ;  provisions  of, 
68,  69,  70,  71 ;  vote  upon,  in 
Senate,  68;  changes  in  House, 
70,  71 ;  bill  returned  to  Senate, 
and  Senate  amendment,  71 ; 
House  refuses  to  accept,  71 ; 
bill  lost,  72;  Jefferson  on 
failure  of  Federalists  to  pass, 
72;  Gallatin's  proposed  amend- 
ment in  House,  72 ;  Jefferson 
and  Nicholson  on,  120;  see 
also  128 

Electoral  Count,  Bill  of  1824,  73, 
74,  121,  128;  bill  introduced 
in  Senate  by  Morton,  January 
26,  1875,  91 ;  remarks  on,  91, 
92;  revived  in  Senate,  March, 
1876,  92;   provisions  of,  93-5; 


attempts  to  amend  so  as  to 
provide  an  ultimate  arbiter  be- 
tween the  houses,  when  they 
disagree  on  returns,  96-100; 
bill  passed,  loi ;  how  the  bill 
would  have  operated  had  it 
been  law  in  1877,  loi,  102;  mo- 
tion for  reconsideration  of  bill. 
passed,  103;  but  bill  not  fur- 
ther voted  upon,  103 

Electoral  Count,  Act  of  Feb- 
ruary 3,  1887.  Efforts  to  en- 
act electoral  count  law,  after 
1877,  215;  Edmunds  reports 
bill,  1878,  215;  bill  reported, 
1882,  215;  Pugh  of  Alabama, 
on,  215;  Garland,  of  Arkan- 
sas, opposes  bill,  216;  amend- 
ments suggested  in  House, 
216,  217;  Edmunds  again  in- 
troduces measure  in  Senate, 
December  8,  1885,  217;  Hoar 
advocates,  217 ;  Sherman  op- 
poses, 218,  219;  Ingalls'  caustic 
remarks  in  opposing,  220,  221 ; 
insists  upon  necessity  of  con- 
stitutional amendment,  221 ; 
Evarts  upon  the  power  to 
count,  222;  upon  the  numerous 
difficulties  of  the  system,  222 ; 
Wilson,  of  Iowa,  opposing  bill, 
insists  upon  necessity  of  con- 
stitutional amendment  224 ; 
provisions  of  act  of  February 
3,  1887,  230,  231,  232,  233,  234, 
242 ;  its  provisions  critically 
reviewed,  229-43 ;  single  re- 
turns, 235-6;  multiple  returns, 
236-40;  J.  G.  Carlisle  on  act, 
241  n.,  243  n. ;  defects  in  act, 
243-4,  245;  of  doubtful  consti- 
tutionality, 246;  no  more  pos- 
sible to  draft  satisfactory  law 
in  1887  than  in  1876,  248;  fail- 
ure to  provide  a  "  common  ar- 
biter "  when  the  houses  dis- 
agree, 248;  necessity  of  con- 
stitutional amendment,  249 ; 
further  criticism,  254 

Electoral  Counts,  1789,  28,  29; 
1793,  32,  33;  1797,  33,  34;  1801, 
35,  36;  1805,  38;  1809,  39;  1813, 
40;  1817,  40,  41;  1821,  42-6; 
1825,  46,  47;  1837,  48-50;  1857, 
51-7;     1861,    75;     1865,    75-9; 


Index 


415 


1869,  80-5;  1873,  86-9;  1877, 

105-213 ;  1881,  225  n. ;  1885,  225, 
226  n. 

Electoral  System,  purpose  of 
framers  of  the  Constitution,  i  ; 
metamorphosis  of,  2;  dangers 
of  not  commonly  understood, 
7;  the  Federalist  on,  15; 
McKnight  on,  58,  59; 
should  be  abolished,  250;  its 
origin  obscure,  251 ;  fail- 
ure in  purpose,  252 ;  scru- 
pulous fidelity  of  electors  to 
a  merely  tacit  obligation,  252- 
3 ;  possible  future  breaches  of 
trust,  253 ;  elector  an  abortive 
organism,  253 ;  why  continue 
the  system,  254 ;  usurpation  by 
Congress  of  power  to  count, 
255 ;  veto  by  one  house  on  the 
other  under  act  of  1887,  255  ; 
other  difficulties  of  the  sys- 
tem, 259-62 ;  right  of  House  to 
proceed  to  election  of  Presi- 
dent, when,  262;  election  by 
outgoing  House,  262;  consti- 
tutional defects  in  connection 
with  system,  262-80 ;  Madison's 
plan  for  amendment  of,  329; 
election  may  turn  on  ignorance 
of  voters,  392 ;  summary  of 
criticisms  of,  390-8 

Electors,  eligibility  of,  discussed, 
49.  50,  147,  148,  149,  153,  160, 
168,  170,  179,  180,  181,  182,  184, 
186,  190-201,  209,  243-5,  256 

Ellsworth,  Oliver  (Conn.),  in 
Convention  of  1787,  favored 
election  of  electors  by  legis- 
latures, 302 

Evarts,  WilHam  M.  (N.  Y.),  Re- 
publican counsel  before  elect- 
oral commission,  142.  147,  170, 
185,  186,  209;  views  in  Senate, 
1886-1887,  on  power  to  count, 
222 ;  proposes  amendment  to 
bill  of  1887,  223,  224,  261,  262; 
casus  omissus  in  Constitution, 
262;  "periodicity"  in  election 
of  president  and  vice-presi- 
dent, 264 

Everett,  Edward,  on  general 
ticket  plan.  10 ;  on  district  sys- 
tem, rernarks  in  House  of  Rep- 
resentatives,    1826,    295,    297; 


unwilling  to  increase  compro- 
mises of  Constitution,  298; 
general  ticket  and  district 
system  amount  to  the  same 
thing,  295 


Federalist,  remarks  of  Hamilton, 
in,  on  method  of  choosing 
President,  15 

Ferry,  Thomas  W.  (a  Senator 
from  Mich.),  president  pro 
tern,  of  Senate  during  electoral 
count,  1877,  107,  126 

Field,  Stephen  J.  (Associate  Jus- 
tice U.  S.  Supreme  Court), 
member  of  electoral  commis- 
sion, 135 ;  opinion  of,  in  Flor- 
ida case,  151;  no  opinion  in 
Louisiana  case,  177;  in  Ore- 
gon case,  199,  200,  201 ;  on  in- 
eligible electors,  245 

Fillmore,  Millard  (N.  Y.),  pop- 
ular and  electoral  vote  for,  309 

Findlay,  William  (Pa.),  332 

Florida,  case  of,  before  electoral 
commission,  136-61 ;  present 
extraordinary   ballot    law,    392 

Floyd,  John  B.  (Va.),  remarks 
in  joint  meeting  to  count  elect- 
oral vote,  1821,  44;  remarks  in 
House,  in  recess,  45 ;  in  joint 
meeting,  45 

Franklin,  Benjamin,  favors  popu- 
lar election  of  President  in 
Convention  of   1787,   13 

Frelinghuysen,  Frederick  T.  (a 
Senator  from  N.  J.),  remarks 
in  Senate,  on  Morton  bill,  97; 
offers  amendment  to  bill,  98; 
favors  electoral  commission 
bill,  115;  appointed  member  of 
electoral  commission,  134; 
opinion  of,  in  Florida  case, 
150,  160;  in  Louisiana  case, 
174,  182;  in  Oregon  case,  194; 
in  South  Carolina  case,  204, 
205,  206 

Fremont,  John  C,  electoral  vote 
for,  1856,  52,  309;  popular 
vote  for,  309;  no  electoral  tick- 
et for  in  South,  in  1856,  304 

Frye,  William  P.,  on  election  in 
Louisiana,  1873,  163,  174;  of- 


4i6 


Index 


fers  in  Senate  resolution  for 
amendment  to  Constitution, 
December,  1897,  279 
Fuller,  Melville  W.  (Chief  Jus- 
tice U.  S.  Supreme  Court), 
on  Madison  and  the  district 
system,  281 


Gallatin,  Albert,  offers  in  House 
of  Representatives  amendment 
to  bill  of  1800,  72,  92,  328; 
nominated  for  vice-president, 
1824,  329 

Garfield,  James  A.,  remarks  in 
House  of  Representatives, 
1869,  85;  opposes  electoral 
commission  bill,  129,  130;  ap- 
pointed member  of  electoral 
commission,  135 ;  opinion  of,  in 
Florida  case,  150,  160;  in 
Louisiana  case,  176,  182;  no 
opinion  in  Oregon  case,  195 ; 
count  of  electoral  vote,  1881, 
225,  n. ;  disabled  from  acting 
as  President,  263 ;  illness  of, 
while  President,  276;  popular 
and  electoral  vote  for,  1880, 
313;  minority  President,  318, 
319 

Garland,  Augustus  H.  (Ark.), 
remarks  in  Senate  on  electoral 
count  bill,  1878,  216;  1882,  216, 

247 

Gaston,  William  (N.  C),  re- 
marks in  House,  1813,  on  dis- 
trict system,  and  general  ticket 
system,  289,  290 

General  ticket  system  (of  choos- 
ing electors),  Int.  10;  Hil- 
dreth,  19;  Virginia  adopts,  19; 
Massachusetts  adopts,  19;  dis- 
advantages of,  as  stated  in  re- 
port of  McDuffie  committee 
to  House,  1823,  291-3;  discus- 
sion, in  House,  1826,  294-298; 
reasons  for  adoption  of  gen- 
eral ticket  system,  299,  300;  it 
suppresses  minority  sentiment, 
303,  304;  is  conducive  to 
frauds,  305,  306 ;  danger  of 
fraud  in  close  States,  306; 
small  States  should  oppose 
system,  306 ;  extent  to  which 
large    States    dominate    under 


general  ticket  system,  307; 
electoral  and  popular  vote  in 
different  campaigns,  307-17; 
unfairness  illustrated  m  Penn- 
sylvania, Ohio,  Indiana,  Il- 
linois, 1860-1872,  312;  district 
system,  an  improvement  on, 
324 ;  apportionment  system 
even  better,  with  electoral 
office  abolished,  324,  Madison 
on  general  ticket  system,  330 

Georgia,  status  of,  1865,  81  •; 
electoral  vote  of,  1869,  82,  83; 
1873,  87,  261 ;  1881,  225  n. 

Gerry,  Elbridge  (Mass.),  on  pop- 
ular election  of  President,  14; 
votes  for  Adams,  1796,  18;  on 
mode  of  choosing  electors,  302 

Gilmer,  George  R.  (Ga.),  offers 
resolution,  in  House,  to  amend 
Constitution,  106,  317 

Government  Party,  322 

Granger,  Francis  (N.  Y.),  elect- 
oral vote  for,  as  vice-president, 
1837,   50  n. 

Grant,  Ulysses  S.,  approves  reso- 
lution as  to  count  of  electoral 
vote,  1877,  109;  electoral  com- 
mission bill,  134 ;  266 ;  popular 
and  electoral  vote,  for,  311; 
further  reference  to,  392 

Greeley,  Horace  (N.  Y.),  death 
of,  before  vote  in  electoral  col- 
leges, 1873,  87;  three  Georgia 
votes  for,  88,  261,  265,  266; 
popular  and  electoral  vote  for, 
311,  312;  further  reference  to, 
392 

Green,  Ashbel  (N.  Y.),  counsel 
for  Democrats  before  electoral 
Commission,  142 

Grover,  LaFayette  (Governor  of 
Oregon),  references  to,  198, 
240 

Grundy,  Felix,  ineligible  elect- 
ors, 49 ;  reply  to  question  as  to 
Michigan's  vote,  1837,  50 ; 
other  references,  245,  256 

H 

Hale,  John  P.  (a  Senator  from 
N.  H.),  remarks  in  Senate,  on 
Wisconsin  vote,  1857,  53 ;  pop- 
ular vote  for,  1852,  309 


Index 


417 


Hale,  Eugene  (Me.),  opposed 
electoral  commission  bill,  127; 
believed  president  of  Senate 
had  power  to  count,  127,  128 

Hamilton,  Alexander  (N.  Y.), 
excellence  of  electoral  system, 
15;  his  patriotism,  24;  urges 
Governor  Jay  to  convoke  New 
York  legislature,  1800,  34;  ex- 
tols method  of  choosing  Pres- 
ident, 36 ;  advocates  constitu- 
tional  amendment  establishing 
district  system,  288;  as  to 
mode  of  choosing  electors,  302 

Hammond,  Jabez  D.  (N.  Y.), 
290 

Hancock,  Winfield  S.,  electoral 
count,  1881,  226  n. ;  popular 
and  electoral  vote  for,  314,  319 

Harper,  Robert  G.  (Md.),  re- 
marks in  House  on  bill  of  1800, 
71,  80 

Harrison,  Benjamin  (Ind..).  on 
general  ticket  plan,  11,  302; 
popular  and  electoral  vote  for, 
315;  a  minority  President,  318 

Harrison,  William  Henry,  death 
of,  during  presidential  term, 
270;  popular  and  electoral 
vote  for,  1836,  307;  1840,  308 

Hay,  George,  letter  to,  from 
Madison,  regarding  haste  of 
Convention  of  1787  to  close  its 
sessions,  329 

Hayes,  Rutherford  B.,  twenty- 
second  joint  rule  would  have 
defeated,  so  Morton  bill,  loi ; 
Chandler's  claim,  107 ;  effect  of 
death  of,  before  inauguration, 
267,  269 ;  popular  and  electoral 
vote  for,  313  ;  a  minority  Presi- 
dent, 318 ;  further  reference  to, 
392,  407 

Hayne,  Robert  Y.    (S.  C),  332 

Hendricks,  Thomas  A.  (Ind.). 
death  of,  270 

Hewitt,  Abram  S.  (N.  Y.),  fa- 
vors electoral  commission  bill, 
in  House  of  Representatives, 
128 

Hildreth,  Richard  (historian), 
T9,  286,  287 

Hitchcock,  Henry,  Flexibility  of 
State  constitutions,  Int.  8 


Hoadley,  George,  of  democratic 
counsel  before  electoral  com- 
mission, 142 

Hoar,  George  F.  (Mass.),  ob- 
jects to  count  of  three  of 
Georgia's  electoral  votes,  1873, 
87;  on  Conkling's  support  of 
electoral  commission  bill,  117; 
favors  electoral  commission 
bill,  in  House  of  Representa- 
tives, 127;  appointed  member 
of  electoral  commission  from 
House,  135;  opinion  of,  in 
Florida  case,  150,  160;  report 
of  Wheeler,  Frye  and,  on 
Louisiana,  to  House,  in  1873, 
163,  174;  on  Louisiana  case, 
176;  introduces  an  electoral 
count  bill,  in  Senate,  1882,  215 ; 
advocates  bill  of  1887,  217, 
218;  on  its  imperfections,  248, 
249;  on  presidential  succes- 
sion, if  President-elect  should 
die,  269,  270;  defects  in 
amendment  proposed  in  Sen- 
ate, in  1898,  388,  389 

Hobart,  Garret  A.  (N.  J.),  death 
of,  270 

Hoffman,  Michael  (N.  Y.),  fa- 
vors in  House  of  Representa- 
tives district  system  and  direct 
vote  for  President,  295,  298 

Holmes,  John   (Me.),  332 

House  of  Representatives,  when 
to  elect  President,  261 ;  elec- 
tion by  outgoing  House,  262; 
can  vote  for  only  three  candi- 
dates, 273-5 

Howe,  Timothy  O.  (a  Senator 
from  La.),  argument  in  Loui- 
siana case,   1877,   164,   165 

Huger,  Daniel  (S.  C),  un- 
reasoning attachment  to  Con- 
stitution, 25 

Hunton,  Eppa  (Va.),  advocates 
electoral  commission  bill  in 
House  of  Representatives, 
127;  appointed  member  of 
commission,  135 ;  opinion  of,  in 
Florida  case,  150;  in  Louisiana 
case,  175,  182 ;  in  Oregon  case, 
log;  in  South  Carolina  case, 
206 

Hurd,   Frank   H.    (O.),   Demo- 


4i8 


Index 


cratic  counsel  in  South  Caro- 
lina case  before  electoral  com- 
mission, 203 
Hurlbut,  Stephen  A.,  203 


I 


Inability,  Presidential,  276-7 
Indiana,  Int.,  4;  adopts  a  con- 
stitution, 40;  objection  to 
electoral  vote  from,  in  1817, 
40,  41 
Ingalls,  John  J.  (a  Senator  from 
Kansas),  criticises  electoral 
commission  law,  7;  on  modes 
of  electing  President  proposed 
in  Convention  of  1787,  14;  op- 
poses electoral  commission  bill 
in  Senate,  1886,  220,  221 ;  de- 
clares legislative  remedies  fu- 
tile, 221 ;  on  electors,  250,  251 ; 
further  remarks  in  debate, 
1886,  262,  263,  269,  270 


Jackson,  Andrew,  candidate  for 
presidency,  1825,  46;  electoral 
vote  for  1825,  47;  vote  in 
House  of  Representatives, 
1825,  47;  most  popular  candi- 
date, 47;  urges  amendment  to 
Constitution,  in  inaugural 
messages,  106,  339;  reference 
to,  260;  vote  for  in  Maryland, 
in  1832,  as  compared  with  vote 
for  Clay,  307,  374;  popular 
and  electoral  vote  for,  in 
1832,  307 

Jay,  John  (Governor  of  N.  Y.), 
refuses  to  convene  New  York 
legislature,  1800,  to  enact  law 
for  election  of  presidential 
electors  in  districts,  34,  282 ; 
has  one  electoral  vote,  1801, 
274 

Jefferson,  Thomas  (Va.),  elect- 
oral vote  for,  1797,  18,  33; 
on  Vermont's  electoral  vote, 
I797>  34.  ^-  'j  Samuel  Miles 
votes  for,  35,  n. ;  electoral  vote 
for  1 801,  24.  35,  36;  vote  for 


in  House  of  Representatives, 
36;  writes  Edward  Livingston 
about  Ross'  bill  of  1800,  71 ; 
letter  to  Madison,  63,  72 ;  on 
bill  of  1800,  as  quoted  by 
Conkling,  120 ;  advises  Vir- 
ginia to  adopt  general  ticket 
system,  1800,  286  and  note ;  on 
electoral  vote  of  Massachu- 
setts, in  1804,  287,  288  and 
note ;  on  difficulty  of  amend- 
ing the  Constitution,  405 

Jenks,  George  A.,  one  of  counsel 
for  Tilden  electors,  argument 
in  Louisiana  case,  167 

Johnson,  Andrew  (Tenn.),  veto 
of  joint  resolution,  1869,  81 ; 
attempted  impeachment  of,  264 

Johnson,  Richard  M,  (Ky.), 
electoral  vote  for,  as  vice- 
president,  1837,  50,  n. ;  chosen 
by  Senate,  50,  n. ;  other  refer- 
ences, 332 

Johnston,  Alexander  (histo- 
rian), growth  of  claim  of  con- 
gressional power  to  count 
electoral  votes,  59,  60;  elect- 
oral system  only  feature  of 
the  Constitution,  not  a  natural 
growth,  251,  252 

Johnston,  John  W.  (Senator 
from  Va.),  offers  amendment 
to  Morton  bill,  97;  remarks, 
98,99 

Joint  Rule,  Twenty-second,  S,  6, 
78,  95,  107,  130 

Jones,  Charles  W,  (Fla.),  on 
Morton  bill,  99 

Jones,  George  W.  (Tenn.),  teller, 
1857,  51 ;  letter  to,  from  Mr. 
Justice  Strong,  212 


Kellogg,  William  Pitt  (Governor 
of  Louisiana),  165,  373 

Kent,  James  (N.  Y.),  Int.  10; 
Dangers  in  connection  with 
choice  of  President,  15 ;  views 
as  to  power  of  president  of 
Senate  to  count  electoral  votes, 
27,  n. ;  letter  from,  quoted  in 
House  of  Representatives, 
1857,  56 ;  peril  foreseen  by,  57 ; 


Index 


419 


references  to,  in  debates,  98, 
119,  127,  132,  401;  opposed  ex- 
tension of  suffrage  in  New 
York,  182 1,  398 

Kentucky,  vote  of  one  elector 
missing,  1809,  40 

Kernan,  Francis  (a  Senator 
from  N.  Y.),  remarks  in  Sen- 
ate on  Morton  bill,  97;  ap- 
pointed member  of  electoral 
commission,  in  place  of  A.  G. 
Thurman,  206 

King,  Rufus  (a  Senator  from 
N.  Y.),  on  caucus  system,  333 

Knott,  Proctor  L.,  opposes  elect- 
oral commission  bill,  in  House 
of  Representatives,  132 


I^mar,  Lucius  Q.  C.  (Miss.), 
supports  electoral  commission 
bill  in  House  of  Representa- 
tives, 131 

Langdon,  John  (Delegate  to 
Convention  of  1787,  Senator 
from  N.  H.),  president  of 
Senate,  and  opens  and  counts 
electoral  votes,  1789,  29;  votes 
against  bill  of  1800,  68;  Mor- 
ton refers  to,  124 

Lapham,  E.  G.  (N.  Y.),  disap- 
proves of  electoral  commis- 
sion bill,  132 

Lawrence,  William  (O.).  op- 
poses electoral  commission 
bill,  133;  argument  (Louisiana 
case)  as  counsel  for  Hayes 
electors,  that  state  legislature, 
in  appointing  electors,  mav 
disregard  state  constitution, 
204 

Letcher,  John  (Va.),  objects  to' 
Wisconsin  vote,  1857,  51,  52 

Lincoln,  Abraham  (111.),  reluc- 
tantly signs  joint  resolution, 
1865,  for  counting  electoral 
vote,  76,  77;  death  of,  268; 
scheme  to  assassinate,  1861, 
270;  a  minority  President,  318, 
319;  popular  and  electoral 
vote  for,  i860,  310,  311;  1864, 
311;  in  certain  States,  312 

Liyermore,  Samuel  (N.  H.),  ob- 
jects   to    count    of    Missouri's 


votes,  1821,  44;  remarks  in 
Senate,  1800,  on  Ross'  motion, 
64 

Livingston,  Edward  (La.),  fa- 
vors district  system  for  choice 
of  electors,  294;  and  abolition 
of  electors,  295 

Livingston,  Robert  R.  (N.  Y.), 
295 

Logan,  John  A.  (a  Senator  from 
111.),  succeeded  by  Justice  Da- 
vid Davis,  13s 

Louisiana,  case  of,  before  elect- 
oral commission,  162 

M 

Macon,  Nathaniel  (a  Senator 
from  N.  C),  opposes  Van 
Buren  bill  of  1824  as  uncon- 
stitutional, 73 ;  other  refer- 
ences to,  332,  334 

Madison,  James  (Va.),  letter  of 
Jefferson  to,  63,  72 ;  on  district 
system,  281 ;  election  of,  1812, 
282;  introduces  bill  for  gen- 
eral ticket  system,  in  Virginia 
house  of  delegates,  1800,  286; 
on  district  system  of  electing 
presidential  electors,  letter  to 
George  Hay,  329-31 ;  to  Jeffer- 
son, 332;  to  McDuffie,  332; 
other  references,  357,  398,  400 

Maish,  Levi  S.  (Pa.),  proposed 
amendment  to  Constitution, 
351,  354,  357,  363,  309,  400 

Mallory,  Robert    (Ky.),  54 

Marshall,  Humphrey  (a  Senator 
from  Ky.),  proposes  amend- 
ment to  Constitution  in  Sen- 
ate, January,   1798,  25,  69,  70 

Marshall,  Humphrey  (Ky.),  re- 
marks, in  House  of  Represen- 
tatives, on  electoral  count, 
1857,  55 

Marshall,  John  (Va.),  chairman 
of  committee.  House  of  Rep- 
resentatives, on  bill  of  1800, 
70;  doubts  as  to  bill,  70;  his 
"  dexterous  manoeuvre,"  71 ; 
necessity  for  concurrent  ac- 
tion to  reject  a  State's  vote, 
80 ;  other  references,  248 

Martin,  Luther  (Md.),  in  Con- 
vention of  1787,  favored  elec- 


420 


Index 


tion  of  electors  by  legisla- 
tures, 302 

Maryland,  vote  of,  in  House  of 
Representatives,  for  President, 
1801,  Z7 

Mason,  George  (Va.),  views  in 
Convention,  1787,  on  mode  of 
choice  of  President,  14 

Mason,  James  M.  (a  Senator 
from  Va.),  presides  during 
electoral  count  of  1857,  51,  52, 
53  and  note,  121 

Massachusetts,  abandonment  in, 
of  district  system,  19;  petition 
from  citizens  of,  1809,  39 

Matthews,  Stanley  (O.),  Repub- 
lican counsel  before  electoral 
commission,  142;  on  quaint 
saying  of  Selden,  257 

Maxey,  Samuel  B.  (a  Senator 
from  Texas),  remarks  in  Sen- 
ate on  Morton  bill,  99 

McClellan,  George  B.  (General), 
references  to,  76,  311,  319 

McComas,  William  (Va.),  pro- 
poses amendment  to  Constitu- 
tion, 340 

McCrary,  George  W.  (la.), 
initiates  discussion,  in  House 
of  Representatives,  of  electoral 
commission  bill,  126 

McDonald,  J.  E.  (Ind.),  argu- 
ment in  Louisiana  case,  1877, 
164,  166 

McDuffie,  George  (S.  C),  pro- 
poses Constitutional  amend- 
ment, 259,  328,  329;  motion  in 
House  of  Representatives  for 
select  committee,  1823,  291 ; 
report  favoring  district  system, 
291,  294;  speech  on,  1826,  294, 
296;  criticism  of  Adams  and 
Clay,  298;  letter  of  Madison 
to,  332,  also  398 

McEnery,  John   (La.),  165,  166, 

373 
McKinley,  William    (O.),  death 

of,  270;  popular  and  electoral 

votes  for,  315,  316 
McKnight,  David  A.,  quotations 

from  his  Electoral  System  of 

the  United  States,  58,  59,  66 
McMaster,  John  B.    (historian), 

325 


McPherson  v.  Blacker,  146  U.  S., 
I,  citations  from,  300,  371,  n. 

Merrick,  Richard  T.,  Democratic 
counsel  before  electoral  com- 
mission, 142;  argument,  Ore- 
gon case,  185,  191-93,  195,  198 

Merrimon,  Augustus  S.  (Senator 
from  N.  C),  remarks,  in  Sen- 
ate, on  Morton  bill,  92 ;  tries 
to  amend,  99;  amendment  re- 
jected, 100 

Michigan,  vote  of,  counted  in 
the  alternative,  1837,  48 ;  act  of 
May  I,  1891,  establishing  dis- 
trict system,  300 

Miller,  Samuel  F.  (Associate 
Justice  U.  S.  Supreme  Court), 
member  of  electoral  commis- 
sion, 135;  opinion  of,  in  Flo- 
rida case,  153,  154,  156,  160; 
remarks,  in  Louisiana  case, 
169,  177;  opinion  of,  in  Oregon 
case,  196;  as  to  eligibility  of 
electors,   210,   244 

Mills,  Roger  Q.  (Tex.),  opposes 
electoral  com.mission  bill,  131 

Minority  Presidents,  number 
of,  317,  318 

Missouri,  Int.,  4;  constitution  of, 
42 ;  admission  to  Union,  42 ; 
controversy  over  electoral 
votes,  1 82 1,  42-46 

Monroe,  James  (Va.),  electoral 
count,  1817,  41,  43,  44 

Morgan,  John  T.  (Senator  from 
Alabama),  on  count  of  elect- 
oral vote,  1881  and  1885,  225 
n.,  226  n. ;  failure,  for  a  centu- 
ry, to  solve  electoral-count 
difficulties,  401 

Morrill,  Justin  S.  (Vt),  on 
Morton  bill,  lOi ;  on  electoral 
commission  bill,    123,    124 

Morris,  Gouverneur,  advocates 
choice  of  president  by  people 
in  convention  of  1787,  13,  302 

Morton,  Oliver  P.  (a  Senator 
from  Ind.),  Int.,  8,  10;  on  in- 
justice of  House  election  of 
President, 23  n. ;  on  rejection  of 
Arkansas'  electoral  vote,  1873, 
88;  resolution,  in  senate,  1873, 
89;  speech  on  electoral  system, 
89;   iniquity  of  twenty-second 


Index 


421 


joint  rule,  89,  90;  favors  elec- 
tion of  president  by  people,  90 ; 
introduces  bill  in  Senate  to 
regulate  electoral  count,  91 ; 
remarks  on,  during  debates, 
96,  97,  100,  103;  on  committee 
of  Senate  (1877)  to  report  bill, 
109;  opposes  electoral  commis- 
sion bill,  no,  III,  114,  115,  117, 
118,  124,  125;  on  Conkling's 
speech,  117;  appointed  member 
of  electoral  commission,  134; 
opinion  of,  in  Florida  case, 
149,  150,  160;  in  Louisiana 
case,  172,  181 ;  in  Oregon  case, 
I93»  195 ;  in  South  Carolina 
case,  204,  20s,  206;  eligibility 
of  electors,  206 ;  Morton  bill, 
imperfect,  248;  on  interme- 
diate electoral  bodies,  251 ;  on 
disparity  between  popular  and 
electoral  votes,  311-12;  offers 
amendment  to  Constitution,  in 
Senate,  259,  344;  remarks  on, 
344-46;  quotation  from  speech 
in  Senate,  1873,  300,  303;  on 
election  of  president  by  House 
of  representatives,  347;  rein- 
troduces amendment  Dec.  1876, 
348;  views  in  North  American 
Rcviezv,  May  and  July  1877, 
348;  his  death,  348;  his  work 
for  presidential  electoral  re- 
form, 348;  text  of  his  amend- 
ment, 348-49;  criticism  of, 
350 ;  compared  with  Madison's 
plan  and  Benton's  plan,  350, 
392,  39^5^398,  399,  400,  401 
Morton  Bill,  to  regulate  electoral 
count,  introduced  in  senate, 
91 ;  debates  of,  91 ;  bill  passed, 
1875,  92;  text  of  bill,  93-95; 
amendments  offered,  91,  99, 
100;  bill  passed,  1876,  loi ; 
vote  on,  loi ;  motion  to  recon- 
sider  passed,  103 ;  effect  of,  in 
election  of  1876-77,  had  it  be- 
come law,  loi,  102;  imper- 
fections admitted  by  its  sup- 
porters, 96,  97,  98,  99,  103 ;  re- 
consideration, but  no  further 
vote,  103;  Conkling  on,  121, 
122;  other  references  to,  128, 
247-249,  254,  401 


N 


Newcomb,  Prof.  Simon,  Views 
of,  on  electoral  system,  278 

New  York  (City),  Election, 
spring  of  1800,  34 

New  York  (State),  great  weight 
of  its   electoral  vote,  306,  314 

Nicholas,  John  (Va.),  328; 
proposed  amendment  to  con- 
stitution to  establish  district 
system,  357 

Nicholas,  Wilson  Carey  (Va.), 
twelfth  amendment,  274 

North  Carolina,  took  no  part  in 
presidential  election,  1789,  21, 
284 


O'Conor,  Charles  (N.  Y.), 
Democratic  counsel  in  Florida 
case,  before  electoral  commis-. 
sion,  138,  142,  145,  166 

Oregon,  Case  of,  before  electoral 
commission,    184 

Ostrogorski's,  Democracy  and 
Political  Parties,  260;  on 
temporary  parties,  322 


Paine,  Albert  W.  (Me.),  on  fail- 
ure of  constitution  to  provide 
for  contingency  of  death  of 
president-elect,  279;  his  pro- 
posed amendment  modified  in 
senate,  388,  389 

Parker,  Alton  B.  (N.  Y.),  popu- 
lar and  electoral  vote  for,  317, 
392,  393 

Parties,  strength  of  attachment 
to,  in  U.  S.,  322 

Payne,  Henry  B.  (O.),  appointed 
member  of  electoral  commis- 
sion, 135,.  177,  195 

Pennsylvania,  importance  of  vote 
of,  1800,  63 

Pickens,  Israel  (N,  C),  offers 
resolution  in  House  of  Re- 
presentatives to  amend  consti- 
tution to  establish  district  sys- 
tem, 289,  290,  326 


422 


Index 


Pierce,  Franklin  (N.  H.),  pop- 
ular and  electoral  vote  for,  309 

Pinckney,  Charles  Cotesworth  (a 
Senator  from  S.  C).  on  mode 
of  electing  President,  13; 
electoral  vote  for,  1801,  35; 
attacks  in  Senate,  1800,  Ross' 
bill  for  counting  electoral 
votes,  66-68 ;  votes  against  bill, 
68;  on  act  of  1792,  68;  pithy 
criticism  on  the  bill  of  1800,  ap- 
plied to  act  of  1887,  249 

Pinckney,  Thomas,  electoral  vote 
for,  1797,  33 

Pinkney,  William  (Md.),  81,  n. 

Polk,  James  K.  (Tenn.),  favors 
abolition  of  electors,  1826, 
295 ;  on  slaves  and  represen- 
tation, 298;  popular  and 
electoral  vote  for,  1844,  3o8; 
minority  President,  318. 

Potter,  Orlando  B.  (N.  Y.),  ob- 
jects to  Mississippi's  vote, 
1873,  87 

President  (and  Vice-President), 
death  of,  in  office,  263 

President-elect,  death  or  inabili- 
ty of.  265 ;  no  provision  for,  in 
constitution,  273 

Presidential  Succession  Law,  264 

Prohibition  Party,  320 

Pugh,  George  E.  (a  Senator 
from  O.),  views  as  to  electoral 
count,  1857,  54 

Pugh,  James  L.  (Senator  from 
Ala.),  215 

Purcell,  William,  elector  re- 
quired to  vote  by  ballot,  253 


R 


Randolph,  John  (of  Roanoke, 
Va.),  39;  on  count  of  Missou- 
ri's votes,  1821,  44,  45,  46; 
soundness  of  view,  60,  92 

Ransom,  Matthew  W.  (N.  C), 
one  of  Senate  committee  to  re- 
port electoral  count  bill,  109 

Remedy,  a  suggested,  364 

Rawlins,  Joseph  L.  (U.),  criti- 
cism of  Frye  amendment,  1898, 
389 


Representation,  Proportional  (or 
Apportionment  System),  11 
n. ;  258,  324,  344,  358,  400 

Resolution,  Congress  of  Con- 
federation, as  to  counting  elect- 
oral votes,  1789,  26 

Rhode  Island,  took  no  part  in 
presidential  election,    1789,  21 

Rives,  William  C.  (Va.),  340 

Roosevelt,  Theodore  (N.  Y,), 
popular  and  electoral  vote  for, 
317,  392,  393 

Root,  Erastus  (N.  Y.),  on  dis- 
trict system,  290 

Ross,  James  R.  (a  Senator  from 
Pa.),  offers  resolution  in 
Senate,  January,  1800,  63 ;  re- 
mark, 64 ;  reference  to,  287. 


Saulsbury,  Eli  (Del,),  remarks 
in  Senate  on  Morton  bill,  92 

Scott,  Winfield  S.,  popular  and 
electoral  vote  for  1852,  309 

Seward,  William  H.  (N.  Y.),  int. 
12;  remarks  in  Senate  during 
electoral  count  of  1857,  53,  55 ; 
attempted  assassination  268 ; 
third  party  voting,  "guerilla 
warfare,"  320 

Seymour,  Horatio  (N.  Y.),  pop- 
ular and  electoral  vote  for,  311, 
313 

Shellabarger,  Samuel  (O.),  on 
Wade's  action  during  electoral 
count,  1869,  84;  on  power  to 
count,  and  twenty-second  rule, 
84,  85,  127 ;  republican  counsel 
before  electoral  commission, 
142;   arguments,   147,   148,   169 

Sherman,  John  (a  Senator  from 
O.),  remarks  during  electoral 
count,  1869,  83, ;  on  disfran- 
chisement of  Arkansas,  1873, 
88;  on  disputes  of  electoral 
votes,  105 ;  opposes  electoral 
commission  bill,  116;  opposes 
in  1886  bill  to  regulate  count, 
218-220,  223 ;  criticises  clauses 
in  bill  giving  Congress  power 
to  reject  the  vote  of  a  State, 
in  some  cases  where  there  is 


Index 


423 


one  return,  235;  and  where 
there  are  double  returns,  238 

Sherman,  Roger  (Conn.),  in 
Convention  of  1787  favored 
election  of  electors  by  Con- 
gress, 13,  302 

Sieyes,  Abbe,  251 

Smith,  Green  Clay,  popular  vote 
lor,  313 

Smith,  Samuel  (Md.),  moves  to 
insert  number  "three"  in 
twelfth  amendment,  274 

Smith,  William  L.  (S.  C),  pro- 
poses amendment  to  Constitu- 
tion in  House,  25 ;  remarks  on, 

25 
Southard,  Milton  L.  (O.),  pro- 
poses amendment  to  Constitu- 
tion, May,  1878,  355;  report 
of  committee  of  House  of 
Representatives  on,  355-7  J 
minority  report,  357-8 ;  text  of 
amendment,  359-62;  its  excel- 
lent features,  its  defects,  362, 

363 

South  Carolina,  Case  of,  before 
electoral  commission,  202-13 

Springer,  William  M.  (111.),  ar- 
gues for  electoral  commission 
bill,  128;  proposes  amendment 
to  Constitution,  354;  defects 
of  plan,  355 

Stanwood,  Edward,  80 

States,  equal  division  of,  in 
electoral  colleges,  between 
Taylor  and  Cass,  319;  Gar- 
field and  Hancock,  319;  power 
of  large  states,  323 ;  their  fail- 
ure to  make  provision  for  con- 
tests of  election  of  electors,  345 

Stearns,  Marcellus  L.  (Governor 
of  Florida),  references  to,  138, 
143,   146,  149 

Stevens,  Thaddeus  (Pa.),  re- 
ported twenty-second  joint 
rule  to  House,  121 

Stevenson,  John  W.  (a  Senator 
from  Ky.),  remarks  in  Senate 
on  Morton  bill,  98,  99 

Stevenson,  Andrew  (Va.),  de- 
fender of  general  ticket  sys- 
tem, 295,  340 

Storrs,  Henry  R.  (N.  Y.),  on 
power  of  appointment  of  elect- 


ors, 21 ;  declares  Convention 
of  1787  inspired,  25 ;  opposed 
to  district  system,  295,  298 

Story,  Joseph,  Int.  10;  theory  of 
electoral  college,  17;  danger 
in  House  method  of  choice  of 
President,  24  n. ;  on  twelfth 
amendment,  2i7i  38;  remarks 
of,  in  Massachusetts  constitu- 
tional convention,  1820,  204, 
252 ;  on  resignation  of  presi- 
dential office,  263 

Stoughton,  Edwin  W.,  extract 
from  article  "  Electoral  Con- 
spiracy Bubble  Exploded,"  135, 
n. ;  counsel  for  Republicans 
before  electoral  commission, 
142;  answers  Judge  Black  in 
North  American  Review,  211 

Strong,  William  (Associate  Jus- 
tice of  Supreme  Court),  mem- 
ber of  electoral  commission, 
135 ;  opinion  of,  in  Florida 
case,  152,  159,  160;  colloquy 
with  ex-Justice  Campbell,  in 
Louisiana  case,  170,  177;  opin- 
ion of,  in  Oregon  case,  195, 
196;  further  references,  210, 
212  n. 

Stuart,  Charles  E.  (a  Senator 
from  Mich.),  remarks  in  Sen- 
ate during  discussion  over 
electoral  count,  1857,  55 ;  men- 
tioned, 127 

Sumner,  Charles  (Mass.), 
amendment  to  Constitution  of- 
fered by,  in  Senate,  259,  343 


Taylor,  John  W.  (N.  Y.),  ob- 
jects to  Indiana's  votes,  1817, 
40 

Taylor,  Zachary,  death  of,  270; 
popular  and  electoral  vote  for, 
1848,  309;  a  minority  Presi- 
dent, 318,  319 

Tazewell,  William    (Va.),  46 

Texas,  objection  to  electoral 
vote  of,  in  1873,  346 

Texas  v.  White,  7  Wallace  700, 
citation  from,  371  n. 

Thomas,  Francis,  on  ineligible 
electors,  1837,  50 


424 


Index 


Thompson,  John  B.  (Ky.),  re- 
marks during  electoral  count, 
1857,  53,  55;  mentioned,   127 

Thurman,  Allen  G.  (a  Senator 
from  0.)j  remarks  in  Senate 
during  debate  of  Morton  bill, 
91,  92,  96,  98,  102  n. ;  votes  for 
bill,  loi ;  moves  its  reconsid- 
eration, 103;  supports  electoral 
commission  bill,  123;  member 
of  electoral  commission,  135; 
opinion  of,  in  Florida  case,  150, 
151 ;  opinion  of,  in  Louisiana 
case,  173,  182;  opinion  of, 
in  Oregon  case,  201 ;  resigns 
from  electoral  commission,  206; 
on  Morton's  proposed  amend- 
ment to  Constitution,  347,  348; 
on  ineligible  electors,  245 

Tilden,  Samuel  J.  (N.  Y.),  Int., 
7;  joint  rule  would  have 
elected,  102;  probably  Morton 
bill  also,  loi,  102;  popular  and 
electoral  vote  for,  107,  313 

Tompkins,  Daniel  D.  (N.  Y.), 
electoral  vote  for,  as  vice- 
president,  43,  44 

Toombs,  Robert  (Senator  from 
Ga.),  remarks  during  electoral 
count  of  1857,  52 

Townsend,  Martin  I.  (N.  Y.), 
opposes  electoral  commission 
bill,  132 

Trumbull,  Lyman  (111.),  author 
of  twenty-second  joint  rule, 
'JT,  replies  in  Senate  to 
Cowan's  objection  to  rule,  78, 
79;  criticises  Edmunds'  reso- 
lution (1869),  81;  objects  to 
votes  of  Mississippi,  1873,  87; 
argument,  Louisiana  case,  168; 
on  presidential  inability,  276 

Twenty-second  Joint  Rule,  origin 
of,  'jy ;  repeal  of,  95,  107 ; 
criticisms  of,  95,  120,  121,  130 

Tyler,  John  (Va.),  opposes  dis- 
trict system,  340 


Van  Buren,  Martin  (N.  Y.), 
electoral  vote  for,  1837,  48,  49  ; 
bill  of  1824,  to  regulate  elect- 


oral count,  '7^,  123-124;  as 
governor  of  N.  Y.,  recom- 
mends establishment  of  gener- 
al-ticket system,  299;  popular 
and  electoral  vote  for,  1836, 
1840,  1844,  1848,  307-309;  pro- 
poses amendment  to  Constitu- 
tion, 259,  328;  remarks  in  Sen- 
ate, 333-35;  effect  of  Van 
Buren  vote,  1848,  319,  also  398 

Varnum,  Joseph  B.   (Mass.),  40 

Vermont,  electoral  vote  of,  1796, 
2>Zi  34;  electoral  vote,  1801 ; 
vote  in  House,  1801,  zi 

Von  Hoist,  Dr.  H.,  Int.,  2;  if  the 
presidential  candidate  of  the 
victorious  party  should  die  be- 
fore the  meeting  of  the  elect- 
oral colleges,  265  n. 

Vote,  Popular,  of  two  great  par- 
ties, 307-317;  remarkable  close- 
ness, 321;  inferences  from, 
321,  322;  never  has  been  the 
same  for  two  candidates,  374 


W 

Wade,  Benjamin  F.  (O.),  pre- 
sides at  electoral  count,  1869, 
82-85 

Washburn,  Israel,  Jr.  (Me.),  re- 
marks in  House  of  representa- 
tives on  electoral  count,  1857, 
53,  56 

Washington,  George  (Va.), 
unanimously  reelected  Presi- 
dent, ZZ ;  allusion  to  his  death 
by  C.  C.  Pinckney,  in  Senate, 
on  bill  of  1800,  68;  reference, 
252 ;  Constitution  not  "  free 
from   imperfections,"   405   n. 

Watterson,  Henry  (Ky.),  sup- 
ports electoral  commission  bill, 
132 

Watts,  John  W.  (Oregon),  as  to 
his  eligibility  as  elector  (Ore- 
gon), 1877,  186,  190,  191,  193, 
196,  199 

Weaver,  Joseph  B.,  popular  vote 
for,  315 

Webster,  Daniel,  Chairman,  judi- 
ciary  committee   of   house    of 


Index 


425 


representatives,  1824,  73;  re- 
ports Van  Buren  bill  of  1824, 
^^•,  other  references,  248,  340; 
votes  against  amending  Con- 
stitution by  taking  election  of 
president  from  house,  297 ;  and 
in  favor  of  amendment  estab- 
lishing district  system,  297 ;  no 
speech  of  Webster's  on  elect- 
oral system,  297 
Wheeler,  William  A,,  report  by, 
to  house  of  representatives 
with  Hoar  and  Frye,  regard- 
ing Louisiana's  vote,  1873,  163, 
174;  other  references,  267 
White,  Hugh  L.  (Tenn.),  332 
Whyte,  William  Pinckney  (a 
Senator  from  Md.),  opposes 
Edmunds'  resolution,  1869,  81 ; 
on  twenty-second  joint  rule, 
95;  on  Morton  bill,  98,  99; 
favors  electoral  commission 
bill,  125,  126 


Wilson,  Henry  (Mass.),  death 
of,  while  vice-president,  270 

Wilson,  James  (Senator  from 
Iowa),  Congress  has  not  the 
power  to  count  the  electoral 
votes,  224 

Wilson,  James  (Pa.),  favors 
popular  choice  of  President  in 
convention  of  1787,  13,  302 

Windom,  William  (a  Senator 
from  Minn.),  votes  against 
Morton  bill,  92 

Wirt,  William  (Md.),  vote  for, 
in  Maryland,  in  1832,  374 

Wisconsin,  Int.,  4;  discussion 
over  electoral  vote  of,  1857,  51- 
53 ;  further  remarks  on,  57,  394 

Withers,  Robert  E.  (a  Senator 
from  Va.),  remarks  on  Mor- 
ton bill,  96,  99 

Wright,  Silas,  ineligible  electors, 
49,  245,  256;  other  references, 
340 


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UNIV.  OF  CALiF.,  BERK. 


REC.  CIR.   JAIU015 


FEB  1-  ^0       DEC  131990 
IN  STACKS 


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REC.  CIR.  AUG  15*78 

AUTO  DISC  OCl  lb '90 


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